UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-9
Solicitation/Recommendation Statement under Section 14(d)(4)
of the Securities Exchange Act of 1934
FOODARAMA SUPERMARKETS, INC.
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(Name of Subject Company)
FOODARAMA SUPERMARKETS, INC.
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(Name of Persons Filing Statement)
COMMON STOCK, $1.00 PAR VALUE
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(Title of Class of Securities)
344820105
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(CUSIP Number of Class of Securities)
Michael Shapiro
Chief Financial Officer
Foodarama Supermarkets, Inc.
922 Highway 33
Building 6, Suite 1
Freehold, New Jersey 07728
(732) 294-2270
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(Name, address and telephone numbers of person authorized to receive
notices and communications on behalf of the persons filing statement)
With Copies To:
Michael W. Zelenty, Esq. John A. Aiello, Esq.
Pitney Hardin LLP Philip D. Forlenza, Esq.
PO Box 1945 Giordano, Halleran & Ciesla, P.C.
Morristown, New Jersey 07962-1945 125 Half Mile Road
(973) 966-6300 PO Box 190
Middletown, New Jersey 07748
(732) 741-3900
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Item 1. Subject Company Information.
Name and Address.
The name of the subject company is Foodarama Supermarkets, Inc.
("Foodarama"), a New Jersey corporation, with principal executive offices
located at 922 Highway 33, Building 6, Suite 1, Freehold, New Jersey 07728. The
telephone number of the principal executive offices of Foodarama is
(732) 462-4700.
Securities.
This Schedule 14D-9 relates to Foodarama's common stock, par value $1.00
per share. As of June 16, 2006, there were 988,867 shares of common stock issued
and outstanding.
Item 2. Identity and Background of Filing Person.
Name and Address.
This Schedule 14D-9 is being filed by Foodarama, the subject company. As
stated in Item 1 above, the principal executive offices of Foodarama are located
at 922 Highway 33, Building 6, Suite 1, Freehold, New Jersey 07728, and the
business telephone number of the principal executive offices of Foodarama is
(732) 462-4700.
Offer.
Saker Holdings Corp. (the "Purchaser"), a Delaware corporation formed by a
purchaser group consisting of Richard J. Saker, President and Chief Executive
Officer of Foodarama, Joseph J. Saker, Chairman of Foodarama, Joseph J. Saker,
Jr., Senior Vice President - Marketing and Advertising and Secretary of
Foodarama, Thomas A. Saker, Vice President of Store Operations of Foodarama, the
Joseph Saker Family Partnership, L.P. and four other members of the family of
Joseph J. Saker (collectively, the "Purchaser Group"), has made an offer to
purchase all of the outstanding shares of Foodarama common stock, $1.00 par
value per share (the "Shares"), not currently owned by the Purchaser Group, at a
price of $53 per Share (the "Offer Price"), in cash, upon the terms and subject
to the conditions set forth in the Purchaser Group's Offer to Purchase dated
June 16, 2006 (the "Offer to Purchase") and the related Letter of Transmittal
(which, as may be amended from time to time, together constitute the "Offer"),
copies of which are incorporated by reference as Exhibits (a)(1)(i) and
(a)(1)(ii) to this Schedule 14D-9.
The principal executive offices of Purchaser are located at 922 Highway
33, Building 6, Suite 1 Freehold, NJ 07728 Phone: (732) 462-4700 Fax:
(732) 294-2322.
In the Offer to Purchase, the Purchaser Group states that if all of the
conditions to the Offer are satisfied and the Purchaser Group acquires the
Shares tendered, but less than all of the outstanding Shares are tendered, then
(a) Foodarama will complete a share exchange (the "Share Exchange") pursuant to
which each outstanding Share will be exchanged for one share of common stock of
FSM-Delaware, Inc. ("FSM-Delaware"), a newly formed Delaware
corporation that is a wholly owned subsidiary of Foodarama, and Foodarama will
become a wholly owned subsidiary of FSM-Delaware, and (b) shortly after the
completion of the Share Exchange, the Purchaser Group will effect a merger (the
"Merger") between Purchaser and FSM-Delaware without a vote of the board of
directors or shareholders of FSM-Delaware under the "short form" merger
provision of the Delaware Business Corporation Act (the "DCGL").
Item 3. Past Contacts, Transactions, Negotiations and Agreements.
Conflicts of Interest.
Directors, Officers and Employees of Foodarama. The following members of
the Purchaser Group hold the following positions with Foodarama:
o Joseph J. Saker, Chairman of the Board
o Richard J. Saker, Chief Executive Officer, President and Director
o Joseph J. Saker, Jr., Senior Vice President - Marketing and
Advertising, and Secretary
o Thomas A. Saker, Vice President of Store Operations
o Richard James Saker, Store Manager.
These positions and the equity interests of these individuals in Foodarama
present these individuals with actual or potential conflicts of interest in
determining the fairness of the Offer to Foodarama's shareholders not affiliated
with Purchaser or the members of the Purchaser Group.
Following consummation of the Offer, the Share Exchange and the Merger,
Joseph J. Saker, Richard J. Saker, Joseph J. Saker, Jr., Thomas A. Saker, Nadine
Saker Mockler and a representative of Wakefern Food Corporation ("Wakefern")
will comprise the Board of Directors of Foodarama. The executive officers of
Foodarama will remain the same as prior to the Offer, the Share Exchange and the
Merger.
Purchaser and Controlling Shareholders. The financial interests of the
Purchaser Group with regard to Offer price of $53 per Share are generally
adverse to the financial interests of the shareholders being asked to tender
their Shares. Further, if the Purchaser consummates the Offer, as well as the
Share Exchange and the Merger contemplated thereby and described in Item 2
above, the financing for the Offer and the Merger will be secured by the assets
of Foodarama.
Control Of Foodarama. The members of Purchaser Group have substantial
voting control over Foodarama. Collectively, the members of Purchaser Group own
or control 508,974 Shares, which represent approximately 51.5% of Foodarama's
outstanding common stock. As a result of their voting interest, the members of
the Purchaser Group have the power to control or significantly influence the
vote regarding such matters as the election of Foodarama's directors, amendments
to Foodarama's articles of incorporation and other fundamental corporate
transactions.
2
Option Shares. Certain members of the Purchaser Group hold options to
purchase 90,000 Shares with exercise prices below $53. Under Foodarama's 2001
Stock Incentive Plan (the "Plan"), the Offer will result in the acceleration of
vesting of all outstanding options, including options held by the Purchaser
Group. In addition, the Plan provides that any options that remain outstanding
at the time that the Offer is completed will be settled for cash in an amount
determined by multiplying the number of shares subject to the option by the
Offer Price and subtracting the aggregate exercise price of the option. However,
the members of the Purchaser Group have agreed to waive their right to exercise
options in the Offer that vest as a result of the Offer and their right to
receive a cash settlement for those options. All options held by the members of
the Purchaser Group will be cancelled and certain holders of the cancelled
options will be granted options in Purchaser.
Use of Company Employees. Michael Shapiro, Chief Financial Officer, and
Thomas Flynn, Vice President of Accounting of Foodarama, have assisted the
Purchaser Group in the preparation of the proposal for the Offer, the Share
Exchange and Merger, including assisting in the procurement of financing
arrangements with GMAC Commercial Finance LLC ("GMAC"), facilitating and
reviewing information required from the Purchaser Group in connection with the
Offer and Merger and performing certain other tasks related to the Offer, the
Share Exchange and Merger.
Compensation of Special Committee Members. The Foodarama Board of
Directors appointed a special committee of directors (the "Special Committee")
consisting of the three members of the Board of Directors who are not members of
the Purchaser Group and are otherwise independent, to consider and make
recommendations with respect to the Offer, including making a recommendation in
connection with this Schedule 14D-9. Each member of the Special Committee
receives $500 for each telephonic meeting of the Special Committee attended,
$1,000 for each meeting of the Special Committee attended in person which does
not exceed three hours and $1,500 for each meeting of the Special Committee
attended in person which exceeds three hours for his service as a member of the
Special Committee.
Item 4. The Solicitation or Recommendation.
Solicitation or Recommendation.
The Special Committee has determined that the price to be received
pursuant to the Offer and Merger is fair from a financial point of view to
unaffiliated shareholders and has recommended that unaffiliated shareholders
tender their Shares in the Offer.
Accordingly, the Board of Directors unanimously (except for the abstention
of Joseph J. Saker and Richard J. Saker who are both members of the Purchaser
Group) recommends that Foodarama's shareholders accept the Offer and tender
their Shares pursuant to the Offer.
3
Background; Reasons for the Recommendation of the Special Committee;
Fairness of the Offer and the Merger.
Background of the Offer
At various times in recent years, Richard J. Saker, Foodarama's Chief
Executive Officer and President, and Joseph J. Saker, Foodarama's Chairman of
the Board, have discussed informally between themselves, and with certain
members of Foodarama management, the merits of a going private transaction
involving Foodarama. The factors that prompted these discussions were:
o the lack of liquidity of Foodarama's common stock, due primarily to:
o the small market capitalization of Foodarama;
o the ownership of a majority of Foodarama's common stock by
members of the Saker family and their affiliates;
o the small size of the "public float;"
o the low trading volume of Foodarama's common stock; and
o the limited institutional following of Foodarama's common
stock and the lack of research attention being given to
Foodarama by market analysts;
o the likelihood that Foodarama's common stock would remain relatively
illiquid in the future;
o the significant and increasing cost of operating Foodarama as a
public company; and
o the fact that Richard Saker, Joseph Saker and certain other members
of the Saker family, as required by Wakefern, have personally
guaranteed all of Foodarama's obligations to Wakefern, despite the
fact that they own only approximately 51% of Foodarama's outstanding
common stock.
These discussions intensified commencing in late 2002 as certain members
of the Purchaser Group became aware of the additional expenses that would be
associated with Foodarama continuing to be a publicly-traded company and the
additional burdens that would be placed on management and the board of directors
as a result of the Sarbanes-Oxley Act of 2002, as amended ("Sarbanes-Oxley") and
various rules promulgated by the SEC thereunder.
With the passage of Sarbanes-Oxley, Foodarama encountered significant and
continuing increases in the cost of maintaining its status as a public company,
both through increased compliance costs as well as the diversion of management
time, energy and resources for compliance. For many years, Foodarama's stock has
suffered from low trading volume, limited interest from institutional buyers,
and a lack of research coverage. The average trading volume for the twelve
months ended November 30, 2005 was 242 shares per day and for the five years
ended November 30, 2005 was 478 shares per day. For these two respective
periods, there were no shares of Foodarama common stock traded for 166 days
(65.4% of potential trading days) and 705 days (56.1% of potential trading
days). During the five years ended November 30, 2005, Foodarama had only two
significant institutional investors whose reported holdings, taken together,
never exceeded 14% of Foodarama's outstanding stock at any one time. Management
is not aware of any meaningful analyst coverage of Foodarama in recent years.
4
On December 13, 2004, Richard Saker, Michael Shapiro, Foodarama's Chief
Financial Officer, and Thomas Flynn, Foodarama's Vice President of Accounting,
met with representatives of Conway Del Genio, Gries & Co., LLC, a financial
advisory firm, to discuss the possibility of a going private transaction.
Subsequently, Mr. Saker and certain other members of the Saker family engaged
Conway Del Genio to advise them with respect to a possible going private
transaction. The Saker family retained Conway Del Genio based upon its
experience and expertise, Conway Del Genio is continuously engaged in the
valuation of businesses and securities in connection with acquisitions,
providing restructuring services and acting as a financial advisor in
acquisitions and sales of businesses. During the two years prior to its
engagement, there had been no prior material relationships between Conway Del
Genio on the one hand and either the Purchaser Group or Foodarama on the other
hand.
Between March 2005 and April 2005, Richard Saker began to discuss with
other members of the Saker family the possibility of a transaction in which they
would purchase all of the outstanding equity securities of Foodarama. These
discussions were focused on the limited benefits to Foodarama and its
shareholders of being a public company, including the lack of liquidity of
Foodarama's common stock, the costs of operating Foodarama as a public company
and the fact that members of the Saker family had been required by Wakefern to
personally guarantee all of Foodarama's obligations to Wakefern despite the fact
that members of the Saker family collectively own approximately 51.5% of
Foodarama's outstanding common stock.
On March 3, 2005, Mr. Shapiro and Mr. Flynn met with representatives of
GMAC, one of Foodarama's lenders, to discuss the possibility of GMAC
participating in the financing of a going private transaction involving
Foodarama and the debt capacity available to support the financing of a
potential going private transaction. Mr. Shapiro and Richard Saker attended
additional meetings with GMAC and potential participants in the financing on
March 10, April 8 and April 27, 2005. From time to time from April 27, 2005
through August 11, 2005, Mr. Shapiro and Mr. Flynn discussed matters related to
the financing of the potential going private transaction with representatives of
GMAC, including matters related to the structure of the loan transaction,
borrowing availability, the capital structure and projected operating results of
Foodarama after giving effect to the going private transaction and the
possibility of other lenders participating in the financing.
On April 22, 2005, Mr. Shapiro and Mr. Flynn, with representatives of the
law firm of Giordano Halleran & Ciesla, P.C., counsel to Foodarama, met with
representatives of Conway Del Genio to discuss the financial analysis and the
steps that may be involved in effecting a going private transaction.
On or about May 18, 2005, representatives of GMAC advised Richard Saker
and Mr. Shapiro that they believed that GMAC would be willing to finance a
portion of a going private transaction and would solicit interest from other
potential lenders. On August 11, 2005, GMAC provided a proposal letter to the
Purchaser Group outlining basic loan terms.
On September 13, 2005, Richard Saker, Mr. Shapiro, Mr. Flynn and
representatives of Giordano, Halleran & Ciesla met with representatives of
Conway Del Genio to discuss matters
5
related to the potential going private transaction, including the structure of
the transaction, a possible offer price for the Foodarama shares and the factors
that Conway Del Genio had reviewed in connection with its analysis of a possible
offer price, including historical trading prices, premiums paid in similar
transactions and a discounted cash flow analysis. Conway Del Genio verbally
advised that it believed that the offer price should be within a range of $35 to
$45 but did not provide any written report, opinion or appraisal with respect to
its analysis. After considering alternatives, such as a long-form merger, and
discussing existing legal precedent related to going private transactions, the
group tentatively concluded that it would be preferable to structure a
transaction so that the acquiring entity would own at least 90% of Foodarama's
outstanding common stock upon completion of an initial tender offer. The group
noted that this result could be achieved only with the cooperation of Arthur
Abbey, the holder of approximately 12% of Foodarama's outstanding common stock.
On October 28, 2005, representatives of Conway Del Genio and Giordano,
Halleran & Ciesla met with Mr. Abbey. Mr. Abbey advised that he had no
compelling reason to sell his interest in Foodarama, but that he would be
inclined to sell his shares of Foodarama common stock to the Saker family if an
acceptable price was proposed to him.
In a telephone call on October 31, 2005, representatives of Conway Del
Genio suggested a possible purchase price of $41 per share to Mr. Abbey, who
expressed his unwillingness to sell his shares at that price. Between October
31, 2005 and November 18, 2005, representatives of Conway Del Genio and Mr.
Abbey participated in several telephone calls in which this subject was further
discussed. On November 18, 2005, Mr. Abbey advised that he would be willing to
sell his Foodarama shares for $52 per share if an offer was presented to him.
Foodarama is a member of Wakefern, the largest retailer-owned food
cooperative in the United States. On or about November 17, 2005, Richard Saker
met with representatives of Wakefern to advise them of the proposed going
private transaction and discuss Wakefern's views on the potential change in
ownership of Foodarama that would result from the completion of the proposed
going private transaction in light of the restrictions contained in the
Stockholders' Agreement among Wakefern and its shareholders (the "Wakefern
Stockholders' Agreement"). The Wakefern Stockholders' Agreement provides, among
other things, that notice be given to Wakefern in the event of a merger or
change of control of a Wakefern member and that the member make a "withdrawal
payment" unless the successor in the merger or change of control is a "qualified
successor." To be deemed a "qualified successor," the successor must, among
other things, be considered a financially sound company, as determined by the
board of directors of Wakefern. The Wakefern representatives indicated to Mr.
Saker that they would not view the going private transaction as a change of
control of Foodarama in light of the Purchaser Group's control of over 51% of
Foodarama common stock and that they believed that the Wakefern Board of
Directors would be inclined to support the going private transaction. On or
about November 29, 2005, Mr. Saker and Mr. Shapiro met with Wakefern
representatives to discuss the financial impact of the proposed transactions on
Foodarama. Foodarama subsequently provided certain forecasted financial
information to Wakefern which gave effect to the proposed transactions. These
projections are included in the section of the Offer to Purchase captioned
"Certain Projections of Future Operations" and are incorporated herein by
reference.
6
Meanwhile, following the issuance of the proposal letter from GMAC, Mr.
Saker, Mr. Shapiro and Mr. Flynn finalized negotiations regarding the loans from
GMAC in contemplation of the transactions, and on November 23, 2005, GMAC issued
a written commitment to provide the loans, subject to conditions specified in
its commitment letter.
On December 1, 2005, at a meeting of Foodarama's Board of Directors, Mr.
Richard Saker, on behalf of the Purchaser Group, delivered a non-binding
proposal to the Board of Directors indicating an interest in pursuing a going
private transaction through a tender offer, share exchange and short-form merger
to acquire the outstanding shares of Foodarama common stock not already owned by
the members of the Purchaser Group at a price of $52 per share, subject to
certain conditions, including a condition that Purchaser hold at least 90% of
Foodarama's common stock after the completion of the tender offer and the
approval of the share exchange by Foodarama's shareholders. The proposal
contemplated that Purchaser would be paid a break up fee of $1,000,000 if the
Purchaser Group commenced the tender offer and Foodarama's Board of Directors,
or any committee of the Board, withdrew its recommendation of the tender offer
to Foodarama's shareholders or otherwise terminated the transaction. Mr. Saker
advised the Board that in considering the proposal, the Board should be aware
that the members of the Purchaser Group were not interested in selling their
controlling interest in Foodarama to a third party, and that Mr. Abbey had
advised the Purchaser Group that he would be willing to sell all his shares at
the $52 price. Mr. Saker advised the Board that the Purchaser Group had engaged
Conway Del Genio to analyze and recommend a basic transaction strategy and
financial structure with respect to the proposed transaction and assist it in
determining the tender offer price. The unwillingness of the Saker family to
sell its controlling interest in Foodarama was based upon the fact that the
Saker family had founded and had a substantial investment in Foodarama since its
inception. In addition, in light of Foodarama's status as the largest member of
the Wakefern cooperative, and its familiarity with the other members of the
cooperative, the Saker family did not believe that another member of the
cooperative was likely to be willing and able to acquire Foodarama for
consideration equal to or greater than the $52 per share being proposed by the
Saker family. Further, the Saker family believed that a sale of Foodarama to a
non-member of the Wakefern cooperative was not viable in light of the withdrawal
fee payable to Wakefern under the Wakefern Shareholders' Agreement in the event
of a sale to a party that was not a "qualified successor." The Wakefern
withdrawal fee is based in part upon a "Profit Contribution Factor" that is
applied to Foodarama's minimum required purchases from Wakefern. The Profit
Contribution Factor is periodically adjusted and the dollar amount of
Foodarama's minimum purchase requirements depends upon the total amount of goods
purchased by Foodarama from all of its suppliers. As a result, the withdrawal
fee is a variable amount that changes from time to time based upon the Profit
Contribution Factor then in effect and the total volume of Foodarama's
purchases. Mr. Saker advised the Special Committee that the Purchaser Group had
calculated the withdrawal fee to be approximately $271 million prior to the
December 1, 2005 meeting.
Following discussion regarding the Purchaser Group's proposal, the
directors resolved to establish a Special Committee of the Board to act on
behalf of the public shareholders in evaluating and negotiating the going
private proposal by the Purchaser Group. The Special Committee was comprised of
the Board's three independent directors: Charles T. Parton, Albert A. Zager and
Robert H. Hutchins. The members of the Special Committee are not employed by
7
Foodarama and are not affiliated with Purchaser or the Purchaser Group. The
Special Committee was authorized to review, evaluate and negotiate the terms and
conditions of, and make recommendations with respect to, the proposed
transaction with Purchaser and the Purchaser Group on behalf of Foodarama's
public shareholders other than the members of the Purchaser Group.
The Board authorized the Special Committee to retain legal, financial and
other advisors in order to assist it in its consideration and evaluation of the
Purchaser Group's going private proposal. The Board directed that the Special
Committee and its legal and financial advisors be given unrestricted access to
Foodarama's employees, officers, members of management and to all information
and materials about Foodarama.
On December 2, 2005, Saker Holdings Corp. and the members of the Purchaser
Group filed a Schedule 13D and Schedule TO with the SEC and issued a press
release regarding their interest as a group in pursuing a tender offer, share
exchange and short-form merger transaction to acquire the outstanding shares of
Foodarama common stock not owned by the members of the Purchaser Group. On the
same day, Foodarama filed a Form 8-K with the SEC and issued a press release
which reported receipt of the Purchaser Group's non-binding proposal, described
the general terms of the proposal and related that the Special Committee had
been appointed to evaluate the proposal.
On December 12, 2005, Joseph J. Saker received a letter addressed to
Foodarama's Board of Directors from The Yucaipa Companies ("Yucaipa"), a private
equity firm which, as of October 21, 2005, beneficially owned a 49% interest in
Pathmark Stores, Inc. ("Pathmark"). Pathmark operates a chain of approximately
143 supermarket stores in New Jersey, New York and Pennsylvania. In the letter,
which Mr. Saker furnished to the other directors, Yucaipa advised that it was
interested in purchasing Foodarama and "would be prepared to acquire up to 100%
of Foodarama's common stock at a per share cash price of $90 (or at a
potentially higher price subsequent to the completion of due diligence)."
Yucaipa requested that Foodarama contact its representatives with any questions
or comments regarding its proposal.
Following its formation on December 2, 2005, the Special Committee
considered potential legal advisors and solicited proposals for this engagement
from five law firms. On December 16, 2005, the Committee members met and
reviewed the written proposals of each law firm and discussed each firm's
respective fee structures, relationship with Wakefern, relevant experience in
transactions of this type and potential conflicts. The Special Committee also
had conference call discussions with representatives of two of the firms
regarding specific details of the firm and the proposed representation.
Following this review, the Special Committee agreed to engage Pitney Hardin LLP
("Pitney Hardin") to serve as its legal counsel and to meet with a
representative of Pitney Hardin to formalize the engagement and to commence the
process.
The Special Committee conducted a telephonic meeting on December 19, 2005,
with representatives of Pitney Hardin in attendance. At the meeting, the Special
Committee carefully examined all business or personal relationships that any of
them had with Foodarama or with members of the Saker family and concluded that
none of the facts demonstrated a lack of
8
independence on the part of any of its members. The Special Committee and its
legal advisors also discussed the December 12, 2005 Yucaipa letter, the legal
issues relevant to the Saker family proposal and the Yucaipa letter, and the
selection of an outside financial advisor for the Special Committee. The Special
Committee directed Pitney Hardin to obtain information about the investment
banking firms who had either been recommended to or by members of the Special
Committee or who had made unsolicited inquiries after learning of the proposed
transaction through public reports.
During a series of meetings on December 20, 22 and 27, 2005, the Special
Committee considered and narrowed down its list of 15 investment banking firms,
focusing on the general nature of their services; their areas of specialization;
their specific qualifications for this assignment including their experience in
and knowledge about the supermarket industry; and any actual or apparent
conflicts of interest that they might have. At a meeting held on December 30,
2005, the Special Committee reviewed the information it had obtained from the
remaining investment banking firms that had submitted proposals at the Special
Committee's request. After discussing the strengths and weaknesses of each of
the proposals and speaking by telephone with representatives of William Blair &
Company, LLC ("Blair") and one other investment banking firm, the Special
Committee approved the engagement of Blair as its financial advisor and approved
the fee structure which was subsequently reflected in an engagement letter dated
January 13, 2006 (the "Blair Engagement Letter"). The Blair Engagement Letter
provided for, among other things, payment of a $100,000 retainer fee on
execution of the Blair Engagement Letter and $250,000 on the rendering of a
fairness opinion relating to the going private proposal received from the
Purchaser Group, regardless of the conclusions reached in the opinion. The Blair
Engagement Letter also provided that if Blair participated in negotiations with
Purchaser with respect to the going private transaction at the Special
Committee's request and the Special Committee concluded that Blair had performed
those services to its satisfaction, then Foodarama would pay an additional
$50,000 fee to Blair.
During its December 20, 2005 meeting, the Special Committee also discussed
the Yucaipa letter and directed Pitney Hardin to work with Giordano, Halleran &
Ciesla on a Foodarama Board resolution which would authorize the Special
Committee to engage in discussions with Yucaipa on behalf of Foodarama. This
resolution was ultimately adopted by the Board of Directors of Foodarama by a
unanimous written consent effective as of December 22, 2005.
During its December 22, 2005 meeting, the Special Committee discussed with
its legal counsel the restrictions imposed by the Wakefern Stockholders'
Agreement on a transaction involving a change in control of Foodarama.
At various times after the receipt of the letter from Yucaipa, the
Purchaser Group advised the Special Committee, through counsel, that the
Purchaser Group did not believe that a transaction in which Yucaipa acquired
control of Foodarama was feasible in light of the Wakefern Stockholders'
Agreement. The Wakefern Stockholders' Agreement, among other things, requires
Foodarama to make a substantial payment to Wakefern if Foodarama is acquired by
an entity that is not a "qualified successor." The Purchaser Group advised the
Special Committee that it did not believe that Yucaipa would be considered a
"qualified successor"
9
under the Wakefern Stockholders' Agreement. Among other things, the definition
of "qualified successor" expressly excludes any party that is an operator or
owner of a chain of 25 or more supermarkets, other than ShopRite supermarkets,
in the United States. Yucaipa owns a significant interest in Pathmark. The
Purchaser Group advised the Special Committee that a transaction in which
Yucaipa acquired control of Foodarama would trigger a requirement to pay
Wakefern a "withdrawal fee" of approximately $271 million under the Wakefern
Stockholders' Agreement and might also be restricted under applicable anti-trust
laws.
In early January 2006, following its selection by the Special Committee,
Blair began its financial review and analysis of Foodarama, which included
discussions with Foodarama's management and an analysis of the Wakefern
Stockholders' Agreement and by-laws in consultation with Pitney Hardin. During
this period, representatives of Blair and Pitney Hardin held several telephone
discussions concerning the process that Blair intended to follow in analyzing
the Purchaser Group's proposal. In the course of analyzing the Purchaser Group's
proposal, the Special Committee and its financial and legal advisors discussed
on a number of occasions the alternatives which might be available to Foodarama,
including the possible sale of Foodarama or an interest in Foodarama to Wakefern
or a member of the Wakefern cooperative under circumstances which would not
trigger the Wakefern withdrawal fee; however, the Special Committee and its
advisors noted the absence of any expressed interest from Wakefern or any of its
shareholders in such a transaction, despite the passage of considerable time
from the date the Purchaser Group's proposal was announced. In addition, during
this period, members of the Purchaser Group reiterated earlier communications to
members of the Special Committee and to Blair that they had no interest in
participating in alternative transactions, such as selling their interests in
Foodarama to a third party or the sale of any portion of Foodarama's business.
Accordingly, other than its actions taken in addressing the unsolicited
communications from Yucaipa, Blair was not requested to, and did not, solicit
indications of interest from or conduct an auction with third parties.
On January 9, 2006, Purchaser, through counsel, advised the Special
Committee that, in light of the substantial economic benefit being afforded to
Foodarama shareholders as a result of the tender offer, the fact that the GMAC
commitment letter contemplated a refinancing of Foodarama's indebtedness which
Foodarama had intended to pursue irrespective of the Offer, and the significant
expenses which the Purchaser Group was incurring in connection with the proposed
transaction, Purchaser was requesting that Foodarama agree to reimburse Saker
Holdings Corp. for the "ticking fee" which was accruing under GMAC's financing
commitment at a rate of one-half of one percent per annum of the $105 million
committed amount. The Special Committee advised that it would consider the
request.
At meetings held on January 10 and January 16, 2006, the Special Committee
received updates from representatives of Blair on the due diligence process and
received advice from its legal and financial advisors regarding various aspects
of the Purchaser Group proposal, including the financing of the transactions and
the potential impact of the New Jersey Shareholders Protection Act. During these
meetings the Special Committee also discussed with its legal and financial
advisors the Purchaser Group's request that Foodarama reimburse it for the
ticking fee payable to GMAC. At its January 10, 2006 meeting, the Special
Committee directed Blair to discuss with Conway Del Genio the status of the
Purchaser Group's financing commitment from
10
GMAC and the Purchaser Group's request that Foodarama pay its ticking fees. The
Special Committee and its advisors also discussed the process by which the
Special Committee would address the matters raised by the Yucaipa letter.
During the following week, representatives of Blair, in some cases along
with representatives of Pitney Hardin, engaged in conversations with
representatives of Foodarama and with representatives of GMAC with respect to
the GMAC commitment. They also engaged in conversations with representatives of
Foodarama and with representatives of Wakefern with respect to the ramifications
of a transaction whereby Yucaipa would purchase Foodarama, or a significant and
possibly controlling interest in Foodarama.
At a meeting on January 23, 2006, Blair reported to the Special Committee
on its financial review to date and its communications with representatives of
Foodarama, GMAC and Wakefern and provided a report of its financial analysis to
date, which included its preliminary analysis of financial ratios and public
market multiples for certain companies deemed comparable to Foodarama, an
analysis of consideration paid in transactions considered by Blair to be
comparable to the transaction proposed by the Purchaser Group, an analysis of
hypothetical leveraged buyouts of Foodarama and an analysis of premiums to share
prices paid to shareholders in public company acquisition transactions. The
Special Committee also discussed with representatives of Blair and
representatives of Pitney Hardin the significant structural and financial
impediments to an acquisition by Yucaipa, including the unwillingness to sell
expressed by members of the purchaser group and the Special Committee's belief
that a Yucaipa purchase would trigger a requirement that Foodarama pay a
"withdrawal fee" to Wakefern because Yucaipa would not be a "qualified
successor" under the Wakefern Stockholders' Agreement. Using differing
assumptions regarding the applicable Profit Contribution Factor and Foodarama's
minimum purchase requirements from Wakefern, Blair calculated the withdrawal fee
to be approximately $308 million to $360 million.
On January 25, 2006, after repeated attempts to arrange a telephone call
with representatives of Yucaipa, representatives of Blair had a telephone
conversation with Ronald Burkle, the Managing Partner of Yucaipa. During the
call, Mr. Burkle indicated that Yucaipa's offer was made with the intention of
acquiring a controlling percentage of Foodarama but Yucaipa would consider a
minority position under certain circumstances. He also indicated that he
believed that the Wakefern Board of Directors could be persuaded to accept
Yucaipa as a "qualified successor" under the Wakefern Stockholders' Agreement
even though it failed to meet the requirements of the agreement and that
Foodarama would continue in the Wakefern cooperative after the transaction. Mr.
Burkle further indicated that in formulating the price in its initial proposal,
Yucaipa had assumed that it would be a qualified successor and that it would not
be subject to any termination payments under the Wakefern Stockholders'
Agreement. Mr. Burkle's explanation with respect to how Yucaipa would be
accepted as a qualified successor under the Wakefern Stockholders' Agreement was
not persuasive to the Special Committee.
At a meeting on January 26, 2006, representatives of Blair described for
the Special Committee their communication with the representatives of Yucaipa.
They noted that the per share value expressed by Yucaipa in its letter did not
take into account the large payment that would be due to Wakefern if, as the
Special Committee's advisors believed, Yucaipa would not
11
be a "qualified successor" under the Wakefern Stockholders' Agreement. The
Special Committee and its advisors considered the appropriate response to
Yucaipa given the circumstances and determined that Blair should inform Yucaipa
that, for the Special Committee to act on Yucaipa's expression of interest,
Yucaipa would need to make its proposal clearer or set a target and timeframe
and process to develop such a proposal, and address some of the contingencies
and impediments to consummation inherent in their existing proposal. This
message was relayed to Yucaipa by representatives of Blair on January 27, 2006.
At the January 26, 2006 meeting, Blair representatives also updated the
Special Committee on their financial analysis of the Purchaser Group's proposal.
Blair indicated that the timetable to finalize its financial analysis was
delayed by the need to reconcile two sets of projections it had received from
Foodarama, the first of which was prepared on the basis that Foodarama would
continue as a public company and the other of which assumed lower capital
expenditures and slower growth as a private company. Management had developed
the private company projections in response to GMAC's conditioning its
willingness to finance the going private transaction on a quicker reduction in
Foodarama's post-closing leverage than was contemplated by the public company
projections. Blair noted that if all other assumptions were held constant, the
private company projections raised the valuation implications of the cash flow
based valuation techniques. Blair determined to use the private company
projections as the basis for its analysis. Both sets of projections provided to
Blair are set forth in the section of the Offer to Purchase captioned "Certain
Projections of Future Operations" and are incorporated herein by reference.
On January 27, 2006, counsel to Purchaser sent to counsel for the Special
Committee a proposed form of Tender Offer and Support Agreement between
Foodarama and Saker Holdings Corp., which was in turn forwarded to the members
of the Special Committee and to Blair. On the same date, Blair distributed to
the Special Committee and to Pitney Hardin a revised presentation of its
preliminary financial review. This report contained substantially the same
analysis and was prepared on substantially the same basis as the report
presented as the Special Committee meeting held on January 23, 2006, except that
it reflected the revised projections that assumed lower capital expenditures and
slower growth as a private company.
On January 30, 2006, the Special Committee met by conference call, with
representatives of Blair and Pitney Hardin in attendance. The Special
Committee's legal advisors briefed the members of the Special Committee on the
terms and conditions in the draft Tender Offer and Support Agreement and advised
them on their fiduciary duties in connection with the potential transactions
being considered. The Special Committee's financial advisors informed the
Special Committee members about the communications they had made with and to
Yucaipa in an unsuccessful effort to obtain a clear and firm proposal upon which
action could be taken and described a January 26, 2006 conference call with
Arthur Abbey which Blair and Pitney Hardin had conducted as part of their due
diligence. Representatives of Blair provided a detailed explanation of the
preliminary financial findings that they had distributed a few days earlier,
including its analyses of comparable companies, consideration paid in comparable
transactions, hypothetical leveraged buyouts of Foodarama and premiums to share
prices paid in public company acquisitions. After considering these findings,
the Special Committee decided to seek an increase from the $52 per share being
offered by the Purchaser Group. At the Special
12
Committee's direction, Charles T. Parton, a member and Secretary of the Special
Committee, met on February 1, 2006 with Richard Saker and a representative of
Giordano, Halleran & Ciesla, in its capacity as counsel to Purchaser, and
proposed that the price be raised by $5.00 per share, from $52 to $57 per share.
On January 31, 2006, Blair received a letter from Yucaipa in which
Yucaipa, among other things, expressed its "extreme disappointment with the lack
of any serious response to the offer" made by Yucaipa in its December 12, 2005
letter and asserted that the price being offered by the Purchaser Group was
inadequate in light of current industry valuations. In its letter, Yucaipa
included a partial quote from an e-mail it had received from a representative of
Blair which, in the quoted portions, appeared to state that Yucaipa could submit
a proposal only if it was a "definitive, unconditional proposal ... that is at a
higher price and of equal or better terms with regards to closing risk." Yucaipa
advised that it thought that it was improper for the Special Committee to insist
that the Yucaipa proposal meet such a standard "in view of the vague proposal
submitted by the Saker family." In concluding its letter, Yucaipa requested that
the Special Committee let Yucaipa know if a sale of Foodarama at a price
significantly higher than the Saker price was something it wished to discuss in
a serious manner.
On February 1, 2006, following consultations with the Special Committee
and with representatives of Blair, Pitney Hardin responded to Yucaipa on behalf
of the Special Committee. Pitney Hardin's letter drew attention to the repeated
efforts made by the Special Committee since Yucaipa's first letter on December
12, 2005 to contact Yucaipa, determine the nature of its interest and determine
whether that interest could result in a proposal upon which the Special
Committee could act. The letter pointed out the apparent impediments to a
successful Yucaipa transaction, including the Wakefern requirement of a
"qualified successor" and likely imposition of a "withdrawal fee" of
approximately $300 million, and the declarations by representatives of the
Purchaser Group that its members were not interested in participating in
alternative transactions, such as selling their interests in Foodarama to a
third party. The letter concluded by posing a series of direct questions
designed to elicit information critical to an understanding of Yucaipa's
proposal and critical to the Committee's ability to respond in a meaningful way
to any such proposal.
On February 3, 2006, the Special Committee met by conference call with
representatives of Pitney Hardin and Blair in attendance. No response to the
February 1 letter had been received from Yucaipa at the time of the meeting. The
Special Committee's legal counsel relayed a message from counsel to Saker
Holdings Corp. that Saker Holdings Corp. (i) was unwilling to increase the
offering price above $52 per share, (ii) agreed that the Special Committee
should have authority to negotiate with Yucaipa or other companies, but not to
solicit alternative deals or share non-public information, (iii) wanted the
Special Committee to decide on the reimbursement of expenses for the Purchaser
Group by February 6, 2006 or the Purchaser Group's offer would be rescinded, and
(iv) wanted a decision from the Special Committee on the Purchaser Group's offer
by February 15, 2006.
The Special Committee and their advisors engaged in an extensive
discussion regarding the expense reimbursement requested by the Purchaser Group,
the prospect of obtaining a higher per share price from the Purchaser Group, the
Yucaipa expression of interest being the only
13
competing proposal of any sort despite the passage of a substantial amount of
time since the Purchaser Group's proposal was made public, and the significant
impediments to completing an alternative transaction with Yucaipa or with any
other third party. The Special Committee decided to propose an increased offer
price of $54 per share and an agreement to reimburse the Purchaser Group's
expenses on a going-forward basis until the transaction was completed. It was
decided that Mr. Parton would represent the Special Committee in the
negotiations and that Messrs. Hutchins and Zager would be available for
consultation by phone to address any counteroffer that might be made or issues
that might arise.
On February 6, 2006, a meeting was held, at the request of the Special
Committee, at Conway Del Genio's offices in New York City. Richard Saker
attended the meeting on behalf of the Purchaser Group, and Mr. Parton attended
on behalf of the Special Committee. Also present were representatives of Blair,
Conway Del Genio, counsel to the Special Committee, Pitney Hardin, Giordano,
Halleran & Ciesla and Mr. Shapiro. The Special Committee, along with its
advisors, met separately by conference call at times during the process and the
full committee authorized and ratified all actions taken by Mr. Parton on its
behalf at the meeting. At the meeting, the representatives of the Special
Committee advised that the proposed offer price of $52 per share was not
acceptable to the Special Committee and requested that the offer price be
increased to $54 per share. Extensive discussion ensued with respect to this
matter. Mr. Saker, on behalf of the Purchaser Group, agreed to increase the
offer price to $53 per share and the parties agreed to negotiate the terms of
the Tender Offer and Support Agreement, which, the parties agreed, would provide
for (i) a termination fee of $1,500,000 payable to Purchaser if the Special
Committee withdrew its support of the tender offer or pursued an alternative
acquisition transaction and (ii) the reimbursement of Purchaser's expenses if
the tender offer was not completed under certain circumstances. In addition, Mr.
Parton, on behalf of the Special Committee, agreed that Foodarama would
reimburse Purchaser for its out-of-pocket expenses incurred during the period
beginning on February 6, 2006 and ending upon the earlier of the date that
Foodarama and Saker Holdings Corp. executed a Tender Offer and Support Agreement
or the Special Committee advised Purchaser that it had determined not to
recommend that Foodarama's shareholders tender shares pursuant to the Offer. Mr.
Saker also agreed that the Purchaser Group would seek an extension of the GMAC
financing commitment and elimination of some of the conditions contained in the
original GMAC commitment letter. While other communications and meetings ensued
over the next few days, as described below, a letter agreement confirming this
understanding and the increase in the price being offered by Purchaser was
executed by Foodarama and Purchaser on February 10, 2006. Foodarama issued a
press release announcing the increase in the offer price on February 13, 2006.
On February 7, 2006, the Special Committee received a letter from Mr.
Burkle in which he indicated that Yucaipa was interested in acquiring either a
49% or 100% interest in Foodarama, subject to obtaining access to "necessary
diligence materials and personnel" and the need for a diligence process that
"could be completed in as little as two weeks".
On February 8, 2006, the Special Committee met to determine how to proceed
in light of Mr. Burkle's most recent letter. The Special Committee carefully
considered a number of factors, including its existing understanding with the
Purchaser Group, the possibility of the Purchaser Group rescinding its offer,
the contractual and competitive restraints on Foodarama
14
sharing non-public information with Yucaipa, and Yucaipa's request for a
diligence period of approximately two weeks. The Committee directed Blair to
contact Yucaipa and to communicate that (i) there remained significant obstacles
to Yucaipa purchasing a majority stake in Foodarama and if Yucaipa were
interested in acquiring a majority stake in Foodarama Mr. Burkle must explain to
the Committee how he would overcome these obstacles; and (ii) while Yucaipa had
now more clearly expressed an interest in purchasing a minority interest, the
Special Committee did not have the ability to take any corporate action to
advance that goal. The Special Committee also authorized its legal and financial
advisors to begin negotiating agreements relating to the Purchaser transaction
which had been approved on February 6.
On February 13, 2006, representatives of Blair communicated this message
by telephone to Mr. Burkle who suggested a direct conversation with Richard
Saker on this matter. Representatives of the Special Committee gave assurances
both to representatives of Yucaipa and to representatives of the Purchaser Group
that the Special Committee had no objection to communication between those
parties, and that it would serve the interests of Foodarama's public
shareholders if such communications resulted in a clarification of Yucaipa's
position with respect to Foodarama.
Mr. Saker and Mr. Burkle subsequently met on February 16, 2006 in New York
City. During their meeting, Mr. Saker advised Mr. Burkle that he and other
members of the Saker family were not interested in selling control of Foodarama.
Mr. Burkle requested that Mr. Saker further consider whether he would be
interested in exploring a possible transaction with Yucaipa, and to advise him
of any such interest during the following week. On or about February 21, 2006,
Mr. Saker advised associates of Mr. Burkle that he was not interested in
pursuing a transaction with Yucaipa. On February 27, 2006, in a telephone
conversation with Mr. Burkle, Mr. Saker reiterated his position that he and the
Saker family were not interested in selling control of Foodarama and requested
that Yucaipa formally withdraw its offer. During this conversation, Mr. Burkle
advised Mr. Saker that Yucaipa was no longer interested in acquiring Foodarama
and would withdraw its offer. Mr. Burkle confirmed his withdrawal of the Yucaipa
offer by countersigning a letter sent to him by Mr. Saker dated February 28,
2006 in which Mr. Saker recounted their phone conversation and requested Mr.
Burkle to provide such confirmation.
On March 1, 2006, GMAC issued a revised commitment letter to Purchaser in
which, among other things, it extended the expiration date of its financing
commitment to June 30, 2006 and removed some of the conditions to the financing
which had been contained in the original commitment letter.
Between February 10, 2006 and March 1, 2006, counsel to the Special
Committee and counsel to Purchaser negotiated the terms of the Tender Offer and
Support Agreement. These negotiations generally involved the conditions to the
Offer and the circumstances under which Foodarama would be required to reimburse
Purchaser for its expenses and pay a termination fee to Purchaser. During this
period, counsel to the Special Committee reported to members of the Special
Committee on the discussions held with counsel to Saker Holdings Corp. The terms
of the Tender Offer and Support Agreement were finalized on March 2, 2006.
15
At the meeting of the Special Committee on March 2, 2006, Blair made a
presentation concerning its financial analysis and the principal factors forming
the basis for its opinion. This analysis, which was substantially similar to the
analysis presented to the Special Committee at its January 27 and January 30
meetings, is described in detail in the section of the Offer to Purchase
captioned "Special Factors - Opinion of Financial Advisor to the Special
Committee" and is incorporated herein by reference. Blair discussed the
information it had reviewed and then issued its written opinion to the Special
Committee that as of such date, based upon and subject to the assumptions and
limitations described in the opinion, the price of $53 per share was fair from a
financial point of view to the shareholders of Foodarama other than the members
of the Purchaser Group. Discussion on the matters presented followed among the
Special Committee members and their financial and legal advisors. After the
discussion, based on the fairness opinion and its negotiations with the
purchaser group, along with other factors considered by the Special Committee,
the Special Committee unanimously recommended that the unaffiliated shareholders
accept the tender offer and tender their shares of Foodarama common stock to
Purchaser at $53 per share.
Immediately after the March 2, 2006 meeting of the Special Committee, a
meeting of the full Board of Directors of Foodarama was held. After the Board of
Directors heard the report of the Special Committee, delivered by Mr. Parton,
the full Board, with Messrs. Richard and Joseph Saker both abstaining, voted to
approve the Tender Offer and Support Agreement in the form that had been
presented to it. Immediately after the meeting, Foodarama and Saker Holdings
Corp. executed the Tender Offer and Support Agreement.
On June 6, 2006, GMAC issued a revised commitment letter to the Purchaser
that extended the expiration date of its financing commitment to July 21, 2006.
Reasons for the Recommendation of the Special Committee; Fairness of the
Offer and the Merger
In determining that the Offer is fair to the Foodarama shareholders
unaffiliated with the Purchaser Group and recommending to such unaffiliated
shareholders that they tender their Shares pursuant to the Offer, the Special
Committee considered a number of factors, including the following:
Market Price and Premium. The Special Committee considered the recent and
historical price and trading activity of the common stock of Foodarama. In
particular, the Special Committee considered that the $53 per Share Offer Price
represents a premium of 43.2% over the closing price on December 1, 2005, the
last full trading day before the public announcement of our proposal to take
Foodarama private, and a 46.8% premium over the average closing price for the
twelve-month period ended December 1, 2005.
Relatively Illiquid Market for Shares. The Special Committee considered
the relatively thin trading market and lack of liquidity of the Shares and the
fact that only approximately 49% of the outstanding Shares are held by
shareholders unaffiliated with the Purchaser Group. The Special Committee also
considered how the Shares relative illiquidity and relatively small
16
market capitalization and public float had resulted in, and would likely
continue to result in, an inability on the part of Foodarama to attract
institutional investors to invest in, or research analysts to report on,
Foodarama.
Fairness Opinion. The Special Committee considered the conclusion of the
fairness opinion of Blair (the "Fairness Opinion") that, based upon and subject
to the assumptions and limitations described in the Fairness Opinion, the
consideration to be received by unaffiliated shareholders in connection with the
Offer and the Merger, considered as a single transaction, was fair to them from
a financial point of view. A summary of the Fairness Opinion and the factors
considered in giving the Fairness Opinion is set forth below under the heading
"Opinion of Financial Advisor to the Special Committee". A copy of the Fairness
Opinion setting forth the assumptions made, matters considered and limitations
on the review undertaken by Blair, is attached hereto as Annex A and
incorporated herein by reference. Shareholders should read the text under the
heading "Opinion of Financial Advisor to the Special Committee" and the Fairness
Opinion carefully. The Special Committee has adopted the conclusions and
analyses of Blair furnished to the Special Committee with respect to the
fairness of the consideration to be received by unaffiliated shareholders.
Increase in Offer Price. The Special Committee considered that Purchaser
raised the offer price to $53 per Share from its initial proposal of $41 per
Share to Arthur Abbey, the holder of approximately 12% of Foodarama's
outstanding shares of Common Stock, and from the $52 per Share offer price
contained in its original proposal to the Board of Directors. The Special
Committee considered that the $53 price, which is to be paid entirely in cash,
was Purchaser's highest and best offer for the common stock.
Transaction Structure. The Special Committee evaluated the benefits of the
transaction being structured as an immediate cash tender offer for all of the
outstanding Shares, followed by a share exchange and merger. The Special
Committee considered that the cash tender offer provides the shareholders of
Foodarama the opportunity to obtain cash for all of their Shares at the earliest
possible time, while the Tender Offer and Support Agreement obligates Purchaser
to complete the Share Exchange and Merger and pay the same consideration for
shares of FSM-Delaware received in the Merger as paid for Shares tendered in the
Offer.
Special Committee Formation and Negotiation. The Special Committee
considered that certain terms of the Offer and the transactions contemplated
thereby were the product of the Special Committee's negotiations with
representatives of the Purchaser Group. The Special Committee also considered
that none of its members are employed by Foodarama or affiliated with the
Purchaser Group, and none of them have any material agreement or promise of a
future material benefit from Foodarama, Purchaser or the members of the
Purchaser Group (other than benefits received as directors, including director
compensation described in Item 3 above).
Availability of Appraisal Rights. The Special Committee considered that
appraisal rights will be available to the Foodarama shareholders who do not
tender their Shares in the Offer under the DGCL in connection with the Merger.
Independent Financial and Legal Advisors. The Special Committee had the
benefit of advice from an independent and experienced financial advisor that
reviewed and evaluated the
17
Offer and the Offer Price. In addition, the Special Committee retained
independent and experienced legal counsel to assist it in performing its duties.
Business Prospects. The Special Committee considered Foodarama's business,
prospects, financial condition, results of operations and current business
strategy and the challenges Foodarama would face if it did not proceed with the
proposed transaction contemplated by the Offer, including, but not limited to,
the increasing costs associated with being a public company in light of the
passage of Sarbanes-Oxley and recent corporate governance regulations and other
factors, the lack of trading volume and analyst coverage for Foodarama common
stock, Foodarama's historical performance and Foodarama's lack of access to
equity capital to grow and expand.
Impediments to Obtaining a Substantial Premium for the Shareholders
Through Another Transaction. The Special Committee considered impediments to
implementing another transaction, either now or in the future, by which the
Foodarama shareholders not affiliated with us might obtain a substantial premium
for their Shares. The Special Committee considered the Purchaser Group's
existing control over Foodarama, the Purchaser Group's advice to the Special
Committee that the Purchaser Group was not interested in selling all or any
portion of its equity interest to a third party, the passage of a significant
amount of time since the Purchaser Group publicly announced its interest in
taking Foodarama private without any third party making an alternative proposal
other than the Yucaipa proposal which was subsequently withdrawn, the fact that
no formal offer to acquire Foodarama or any substantial portion of its assets or
securities has been received in the past several years, and the substantial
economic and other impediments to a third-party acquisition of Foodarama imposed
by the Wakefern Stockholders' Agreement. See "Background of the Offer" above.
Net Book Value and Liquidation Analysis. The Special Committee relied upon
the advice of Blair as to the most appropriate analyses of value which should be
undertaken in evaluating the fairness of the consideration to be received by
unaffiliated shareholders in connection with the Offer and Merger. In performing
its fairness analysis, which was undertaken with a view toward determining the
going concern value of Foodarama, Blair did not perform analyses of liquidation
value or net book value. Because Foodarama leases all of its retail locations,
Blair noted that there was likely to be no incremental value in liquidating
assets due to the costs of terminating leases or of subleasing liquidated
locations. Also, Blair noted that the tender offer and merger consideration of
$53 per share was greater than book value per share of $40.94 on a fully diluted
basis as of October 29, 2005. As a result, the Special Committee did not
consider net book value or liquidation value as indicators of Foodarama's value.
In addition to the above, the Special Committee considered the following
factors that make the transaction less attractive to the shareholders of
Foodarama:
Conditions to Transaction. The Special Committee considered that
Purchaser's obligation to consummate the Offer and the Merger is subject to a
number of broad conditions that must be waived or deemed satisfied prior to the
expiration of the Offer at the discretion of Purchaser. If these conditions are
not met or waived, then Purchaser will not be obligated to complete the Offer.
18
Potential Conflicts of Interest. The Special Committee considered the
interest of certain executive officers and directors of Foodarama in the Offer.
See Item 3 above.
Taxable Transaction. The Special Committee considered that the Offer could
result in a taxable gain to Foodarama's shareholders, including those who may
otherwise have preferred to retain their Shares to defer the occurrence of a
taxable event.
Conditional Financing Commitment. The Special Committee considered the
fact that there are various conditions precedent to the obligation of GMAC to
make the loans and that Purchaser currently has no alternative arrangement in
place to finance the Offer and the Merger in the event that the proceeds of the
loans are not available to it for any reason.
Future Prospects of Foodarama Post-Merger. The Special Committee also
considered that, assuming each of the Share Exchange and Merger is completed,
all holders of Foodarama common stock (other than the members of the Purchaser
Group) will not participate in any future growth of Foodarama. Because of the
risks and uncertainties associated with Foodarama's future prospects, the
Special Committee concluded that this potential benefit or detriment was not
quantifiable. In the view of the Special Committee, however, this loss of
opportunity is adequately reflected in the Offer Price of $53.
The description set forth above is not intended to be exhaustive but
summarizes the material factors considered by the Special Committee. In view of
its many considerations, the Special Committee did not find it practical to, and
did not, quantify or otherwise assign relative weights to the specific factors
considered by the Special Committee. In addition, individual members of the
Special Committee may have given different weights to the various factors
considered. After weighing all of these considerations, the Special Committee
unanimously determined that the Offer and the Merger are fair to the
unaffiliated shareholders and recommended that the unaffiliated Foodarama tender
their Shares in the Offer. The Foodarama Board of Directors has adopted the
conclusions and analysis of the Special Committee with respect to the fairness
of the Offer and Merger to unaffiliated shareholders.
Opinion of Financial Advisor to the Special Committee
Blair was retained to act as the Special Committee's financial advisor in
connection with the proposed acquisition by Purchaser. As part of its
engagement, the Special Committee requested Blair to render an opinion as to
whether the consideration to be paid to the Foodarama shareholders unaffiliated
with Purchaser and the Purchaser Group pursuant to the Offer and Merger was fair
to the unaffiliated shareholders from a financial point of view. On March 2,
2006, Blair delivered its written opinion, to the effect that, as of that date
and based upon and subject to the assumptions and qualifications stated in its
opinion, the consideration of $53.00 in cash per share of common stock was fair,
from a financial point of view, to the Foodarama shareholders unaffiliated with
Purchaser and the members of the Purchaser Group. The Fairness Opinion was the
only opinion rendered by Blair in connection with the going private transaction.
An "unaffiliated shareholder" is a shareholder other than one who directly
or indirectly controls, is controlled by, or is under common control with
Foodarama. The Special Committee has advised Purchaser Group that it considers
all Foodarama shareholders who are not affiliated
19
with the Purchaser and Purchaser Group to be unaffiliated shareholders, since
Purchaser Group together controls more than 50% of Foodarama's outstanding
common stock. To the extent that certain other persons may be deemed affiliates
of Foodarama, by virtue of being its directors or officers or otherwise, the
Purchaser Group and the members of the Special Committee consider the financial
interests of those persons in the proposed transaction to be aligned with the
financial interests of the unaffiliated shareholders. Thus, the Purchaser Group
and the Special Committee consider Blair's written opinion regarding the
fairness of the consideration, from a financial point of view, to Foodarama
shareholders unaffiliated with Purchaser and the members of the Purchaser Group
to be, or to be functionally equivalent to, an opinion regarding the fairness of
the consideration to the "unaffiliated shareholders" and such term is used in
describing Blair's written opinion throughout the remainder of this Schedule
14D-9.
Blair provided the Fairness Opinion described above for the information
and assistance of the Special Committee in connection with its consideration of
the Offer, the Share Exchange and the Merger. Blair's opinion to the Special
Committee was one of many factors taken into consideration by the Special
Committee in making its determination to approve the Tender Offer and Support
Agreement. The terms of the Tender Offer and Support Agreement, however, were
determined through negotiations between Foodarama and Purchaser.
The full text of Blair's written opinion, dated March 2, 2006, is attached
hereto as Annex A. You should read the entire opinion carefully to learn about
the assumptions made, procedures followed, matters considered and qualifications
and limitations on the scope of the review undertaken by Blair in rendering its
opinion. Blair's opinion relates only to the fairness, from a financial point of
view, to the unaffiliated shareholders of the consideration to be received in
the Offer and the Merger, does not address any other aspect of the proposed
transactions, and does not constitute a recommendation to any unaffiliated
shareholder as to whether that unaffiliated shareholder should tender his or its
Shares in the Offer. The following summary of the Fairness Opinion does not
purport to be a complete description of the analyses performed by Blair in
connection with such opinion and is qualified in its entirety by reference to
the full text of the Fairness Opinion attached hereto as Annex A. Foodarama
recommends that you read the Fairness Opinion carefully and in its entirety.
In connection with rendering its opinion and performing its related
financial analyses, Blair examined or discussed:
o the draft Tender Offer and Support Agreement dated February 27,
2006;
o certain audited historical financial statements of Foodarama for the
three fiscal years ended October 29, 2005;
o Foodarama's Annual Report on Form 10-K for the year ended October
29, 2005;
o certain internal business, operating and financial information and
forecasts of Foodarama prepared by Foodarama's senior management;
o Purchaser's bank loan commitment letter provided by GMAC dated as of
November 23, 2005, as amended February 28, 2006;
20
o agreements dated as of September 18, 1987, March 29, 1996 and August
20, 1987, as amended February 20, 1992, between Foodarama and
Wakefern, the by-laws of Wakefern and certain information provided
by Foodarama's senior management related to Foodarama's potential
Wakefern co-op withdrawal liability;
o financial and stock market information of Foodarama compared with
that of certain other publicly traded companies Blair deemed
relevant;
o information regarding financial terms of certain other business
combinations Blair deemed relevant;
o current and historical market prices and trading volumes of the
common stock of Foodarama; and
o certain other publicly available information of Foodarama Blair
deemed relevant.
Blair also held discussions with members of Foodarama's senior management
to discuss the foregoing and to discuss Foodarama's current strategic and
financial position. Blair considered other matters which it deemed relevant to
its inquiry and took into account such accepted financial and investment banking
procedures and considerations as it deemed relevant. Blair was not requested to,
nor did it, seek any expressions of interest from other parties with respect to
any alternative transaction to the proposed transactions.
In rendering its opinion, Blair assumed and relied, without independent
verification, upon the accuracy and completeness of all the information examined
by or otherwise reviewed or discussed with Blair for purposes of such opinion,
including without limitation the forecasts provided by senior management of
Foodarama. Blair has not made or obtained an independent valuation or appraisal
of the assets, liabilities or solvency of Foodarama. Blair has been advised by
the senior management of Foodarama that the forecasts examined by Blair have
been reasonably prepared on bases reflecting the best currently available
estimates and judgments of the senior management of Foodarama. In that regard,
Blair assumed that (i) the forecasts will be achieved in the amounts and at the
times contemplated thereby and (ii) all material assets and liabilities of
Foodarama are as set forth in Foodarama's financial statements or other
information made available to Blair. Blair expresses no opinion with respect to
the forecasts or the estimates and judgments on which they are based. Blair
assumed, with the consent of the Special Committee, that the Wakefern
Stockholders' Agreement and by-laws significantly limit other parties that would
be deemed a "qualified successor" (as defined in the Wakefern Stockholders'
Agreement) and significantly increase the effective price that a third party who
is not a qualified successor would have to pay to consummate an alternative
transaction to the Offer, Share Exchange and Merger and therefore significantly
limit alternatives to the Offer, Share Exchange and Merger. However, in its
financial analyses, Blair did not discount the value of shares of Foodarama
common stock held by unaffiliated shareholders to take into account either the
impediments to alternative transactions imposed by the Wakefern Stockholders'
Agreement and by-laws or the Purchaser Group's control of a majority of the
Foodarama common stock. Blair's view, which it shared with the Special Committee
and the full Board of Directors, was that if these factors were reflected in its
valuation, the effect would be to reduce the range of values for those shares.
Further, Blair observed that these factors were difficult to quantify and that
the consideration payable in the tender offer and merger was fair from a
financial point of view to
21
the unaffiliated shareholders, even if these factors were not explicitly
factored into the valuation range.
For the purposes of this opinion, Blair did not consider, and its opinion
does not address, the relative merits of the Offer as compared to any
alternative business strategies that might exist for Foodarama or the effect of
other transactions in which Foodarama might engage. Blair's opinion is based
upon economic, market, financial and other conditions existing on, and other
information disclosed to Blair as of, the date of the opinion. It should be
understood that, although subsequent developments may affect Blair's opinion,
pursuant to the terms of Blair's engagement, it is obligated to update, revise
or reaffirm such opinion, upon the request of the Special Committee, only if the
financial terms of the going private transactions are modified in a manner which
is beneficial to the unaffiliated shareholders within 30 days after the date of
Blair's opinion. Blair has relied as to certain legal, accounting and tax
matters on advice of Foodarama's and the Special Committee's advisors. Blair
assumed that the Tender Offer and Support Agreement executed by Foodarama
substantially conformed to the draft dated February 27, 2006 and that the Offer
will be consummated substantially on the terms described in the draft agreement,
without any amendment or waiver of any material terms or conditions.
The following is a summary of the material financial analyses performed
and material factors considered by Blair to arrive at its opinion. Blair
performed certain procedures, including each of the financial analyses described
below, and reviewed with the Special Committee the assumptions upon which such
analyses were based, as well as other factors. Although this summary does not
purport to describe all of the analyses performed or factors considered by Blair
in this regard, it does discuss those considered by Blair to be material in
arriving at its opinion. In performing its fairness analysis, Blair did not
perform liquidation value or net book value analyses. Blair notes that because
Foodarama leases all of its retail locations, there is likely to be no
incremental value in liquidating assets due to the costs of terminating leases
or of subleasing liquidated locations. Also, Blair notes that Offer and Merger
consideration of $53 per share is greater than book value per share of $40.94 on
a fully diluted basis as of October 29, 2005.
In summarizing and explaining the preparation of Blair's fairness opinion,
the following financial terms are used:
o EBITDA refers to earnings before interest, taxes, depreciation and
amortization.
o EBITDAR refers to EBITDA plus operating lease rent payments. In the
grocery retailing industry, it is typical for companies to have
long-term commitments to make operating lease rent payments. These
operating lease payments are similar to interest payments.
o Equity value refers to the total value of all shares of common and
preferred stock plus the value of in-the-money options and warrants.
o Enterprise value refers to equity value plus the value of all debt
and capitalized lease obligations, less any excess cash balances.
22
o Adjusted enterprise value refers to enterprise value plus the debt
equivalent of the operating leases estimated at eight times annual
net rent expense.
o LTM refers to the last twelve months of financial results.
Selected Public Company Analysis. Blair reviewed and compared financial
information, ratios and public market multiples for certain publicly traded
companies with regional supermarket and wholesale food distribution operations
that Blair deemed relevant to such corresponding information for Foodarama. The
comparable companies selected by Blair were:
o Arden Group, Inc.
o Fresh Brands, Inc.
o Ingles Markets, Inc.
o Marsh Supermarkets, Inc.
o Nash Finch & Co.
o Pathmark Stores, Inc.
o Ruddick Corp.
o Spartan Stores, Inc. and
o Village Super Market, Inc.
Blair selected these companies because they are the publicly traded companies
that engage in businesses reasonably comparable to Foodarama. Blair also
considered the following companies, but excluded them due to their size of
operation and other company specific factors: Albertson's Inc.; Kroger Co.;
Safeway Stores Inc.; The Great Atlantic & Pacific Tea Co., Inc.; Supervalu,
Inc.; and Winn-Dixie Stores, Inc.
For each of the selected companies, Blair calculated the following
valuation multiples:
o Enterprise Value divided by LTM EBITDA
o Enterprise Value divided by LTM revenue
o Adjusted enterprise value divided by EBITDAR
Blair calculated the same valuation multiples for Foodarama, implied by
the Offer Price of $53 per Share. The operating results and the corresponding
derived multiples for Foodarama and each of the selected companies were based on
each company's most recent available publicly disclosed financial information
and closing share prices as of February 28, 2006. In Foodarama's case, the most
recent available publicly disclosed financial information was for the fiscal
year ended October 29, 2005.
The implied enterprise value of Foodarama used to calculate these
valuation multiples was based on the equity value implied by the consideration
per share to be paid to unaffiliated shareholders pursuant to the Tender Offer
and Support Agreement plus the total debt (including net capital leases,
long-term debt and underfunded pension liability) less any excess cash and cash
equivalents assumed to be included in the acquisition.
23
Blair then compared Foodarama's implied transaction multiples to the range
of trading multiples for the selected companies. Information regarding the
multiples from Blair's analysis of selected publicly traded companies is set
forth in the following table.
Adjusted
Closing Enterprise
Stock Adjusted Enterprise Value/ Value/
Price Enterprise Enterprise LTM Net LTM LTM
02/28/06 Value Value Sales EBITDA EBITDAR
-------- ---------- ---------- ----------------- ----------
($ in millions except per share amounts)
ARDEN GROUP INC-CL A $90.85 $ 258.9 $ 314.4 0.55x 6.9x 7.1x
FRESH BRANDS INC 7.02 101.0 172.5 0.17 6.0 7.0
INGLES MARKETS INC 16.51 968.1 1,175.3 0.41 6.4 6.6
MARSH SUPERMARKETS INC 8.71 307.4 644.3 0.17 7.9 7.9
NASH FINCH & CO 31.00 861.0 1,197.9 0.20 6.5 6.9
PATHMARK STORES INC 10.06 1,059.8 1,402.2 0.27 7.8 7.8
RUDDICK CORP 24.18 1,325.5 1,876.7 0.44 6.7 7.0
SPARTAN STORES INC 11.79 321.9 873.2 0.16 5.6 6.9
VILLAGE SUPER MARKET-CL A 53.31 155.7 208.4 0.16 3.9 4.5
FOODARAMA SUPERMARKETS(1) $53.00 $ 262.9 $ 304.3 0.22x 6.0x 6.2x
(1) For Foodarama, stock price is the per share price to be paid in the Offer
and Merger. Other data are those implied by that per share price.
A summary of the selected public company analyses is set forth below.
Selected Public Company Trading Multiples
-----------------------------------------
Implied
Transaction
Multiples(1) Min Mean Median Max
------------ ----- ----- ------ -----
Enterprise Value /
LTM October 2005 Revenue 0.22x 0.16x 0.28x 0.20x 0.55x
Enterprise Value /
LTM October 2005 EBITDA 6.0x 3.9x 6.4x 6.5x 7.9x
Adjusted Enterprise Value/
LTM October 2005 EBITDAR 6.2x 4.5x 6.9x 7.0x 7.9x
(1) Transaction consideration divided by Foodarama financial results.
24
Blair noted that the implied transaction multiples based on the per share
consideration to be paid to the unaffiliated shareholders pursuant to the Tender
Offer and Support Agreement were within the range of multiples of the selected
public companies.
Although Blair compared the trading multiples of the selected companies at
the date of its opinion, none of the selected companies is identical to
Foodarama. Accordingly, any analysis of the selected publicly traded companies
necessarily involved complex considerations and judgments concerning the
differences in financial and operating characteristics and other factors that
would necessarily affect the analysis of trading multiples of the selected
publicly traded companies.
Comparable Transactions Analysis. Blair performed an analysis of selected
recently completed business acquisition transactions focused on the regional
supermarket and wholesale food distribution markets. Blair's analysis was based
on publicly available information for seven transactions. The selected
transactions were not intended to be representative of the entire range of
possible transactions in the respective industries. The seven transactions
examined were (target/acquirer):
o Albertson's, Inc./Supervalu, CVS, Cerberus
o D&W Food Centers/Spartan Stores, Inc.
o Fresh Brands, Inc./Certified Grocers Midwest, Inc.
o BiLo/Bruno's/Lone Star Funds
o Minyard Food Stores, Inc./Texas Acquisition Vehicle II, LLC
o Shaw's (J Sainsbury PLC)/Albertson's, Inc.
o Broadbeck Enterprises Inc./Fresh Brands, Inc.
Similar to the Selected Public Company Analysis described above, Blair
calculated the transaction multiples paid in the comparable acquisition
transactions based on disclosed prices paid and revenue, EBITDA and EBITDAR of
the target for the LTM prior to the announcement of each transaction. Blair
compared the resulting range of transaction multiples to Foodarama's implied
transaction multiples based on the terms of the Tender Offer.
25
Information regarding the multiples from Blair's analysis of selected
transactions is set forth in the following table:
Adjusted
Transaction
Transaction Value/ Value/
Transaction ------------------ -----------
Announcement Transaction LTM LTM
Date Seller Buyer Value Sales EBITDA EBITDAR
------------ --------------------------- --------------------------------- ----------- ------------------ -----------
1/22/2006 Albertson's SUPERVALU/CVS/Cerberus $17,458 0.42x 7.1x 7.2x
12/17/2005 D&W Food Centers Spartan Stores, Inc. 45 0.23 NA NA
12/6/2005 Fresh Brands, Inc. Certified Grocers Midwest Inc. 100 0.16 5.9 7.0
1/31/2005 BiLo/Bruno's Lone Star Funds 1,300 0.26 NA NA
10/20/2004 Minyards Foods Stores, Inc. Texas Acquisition Vehicle II, LLC 85 0.09 5.5 NA
3/26/2004 Shaw's (J Sainsbury PLC) Albertson's 2,600 0.57 7.2 NA
6/16/2001 Brodbeck Enterprises Inc. Fresh Brands, Inc. 30 0.28 6.4 6.6
A summary of the comparable transactions analysis is set forth below.
Selected Comparable Transaction Multiples
-----------------------------------------
Implied
Transaction
Multiples(1) Min Mean Median Max
------------ ----- ----- ------ -----
Enterprise Value /
LTM October 2005 Revenue 0.22x 0.09x 0.29x 0.26x 0.57x
Enterprise Value /
LTM October 2005 EBITDA 6.0x 5.5x 6.4x 6.4x 7.2x
Adjusted Enterprise Value/
LTM October 2005 EBITDAR 6.2x 6.6x 7.0x 7.0x 7.2x
(1) Transaction consideration divided by Foodarama financial results.
Blair noted that the implied transaction multiples based on the per share
consideration to be paid to the unaffiliated shareholders pursuant to the Tender
Offer and Support Agreement were within, and in one case, below, the range of
multiples of the selected transactions. As discussed below, Blair believes that
its analyses must be considered as a whole and that selecting portions of its
analyses, without considering the analyses as a whole, would create an
incomplete view of the process underlying the analyses performed in reaching its
opinion. In addition, Blair considered the results of all such analyses and did
not assign relative weights to any of the
26
analyses, so that the range of valuations resulting from any particular analysis
described above should not be taken to be Blair's view of the actual value of
Foodarama.
Although Blair analyzed the multiples implied by the selected transactions
and compared them to the implied transaction multiples based on the per share
consideration to be paid to the minority shareholders pursuant to the Tender
Offer and Support Agreement, none of these transactions or associated companies
is identical to the Tender Offer or to Foodarama. Accordingly, any analysis of
the selected transactions necessarily involved complex considerations and
judgments concerning the differences in financial and operating characteristics,
parties involved and terms of their transactions and other factors that would
necessarily affect Foodarama's implied value versus the values of the companies
in the selected transactions.
Discounted Cash Flow Analysis. The discounted cash flow methodology is
most appropriate for companies that exhibit relatively steady or somewhat
predictable streams of future cash flow. For a company with limited intermediate
and long-term cash flow visibility, the preponderance of the value can be in the
terminal value, which is extremely sensitive to assumptions about the
sustainable long-term growth of the company. Blair took the foregoing limitation
into account in using this discounted cash flow methodology in the context of
its overall analysis of the Tender Offer.
Blair based its discounted cash flow analysis of Foodarama's projected
future cash flows for the period commencing October 31, 2006 and ending October
31, 2010 on forecasts prepared by Foodarama management in August 2005 which are
included in the section of the Offer to Purchase captioned "Certain Projections
of Future Operations" and incorporated herein by reference. Using the discounted
cash flow methodology, Blair calculated the present values of Foodarama's
projected free cash flows. In this analysis, Blair calculated terminal values
(i) assuming exit multiples ranging from 5.5x to 6.5x projected 2010 EBITDA and
(ii) using discount rates ranging from 10.0% to 14.0%. Blair selected the
terminal value inputs range based on Blair's review of factors projected to be
relevant at the time of the exit, including, among other matters, the trading
multiples of certain comparable companies, the transaction multiples of certain
comparable transactions and certain industry growth rates of approximately 3% to
5%, based on expected population growth plus inflation. Blair determined the
appropriate discount rate range based upon an analysis of the weighted average
cost of capital of other comparable companies that Blair deemed relevant in its
expertise and judgment, as well as the high company-specific risk, given
Foodarama's relatively small size and the competitive nature of the markets it
serves. Blair aggregated (i) the present value of the free cash flows over the
applicable forecast period with (ii) the present value of the range of terminal
values. The aggregate present value of these items represented the enterprise
value range. Foodarama's equity value was determined by deducting the sum of
total debt, less any cash and cash equivalents assumed to be included in the
tender offer. Blair calculated the implied per share equity value range by
dividing the resulting equity values by the fully diluted share count. Using the
Foodarama-provided projections and discount rates of 10% to 14%, Blair
calculated a present value for the free cash flows of Foodarama over the
applicable forecast period of $104.7 million to $115.4 million. Using exit
multiples ranging from 5.5 to 6.5 times and discount rates from 10% to 14%,
Blair calculated a present value of the terminal value of $150.2 to $210.4
million. To calculate the implied per share value for the discounted cash flow
valuation, Blair subtracted
27
$228.6 million of net debt and divided the resulting equity value by
approximately 1.0 million fully diluted shares. The resulting implied equity
value per share is $25.11 per share to $92.79 per share compared to the $53.00
per share proposed to be paid in the Offer and Merger.
Leveraged Buyout Analysis. Blair also performed an analysis of the per
share valuation that might be achieved in a hypothetical leveraged buyout of all
of Foodarama and compared this valuation to the price proposed to be paid in
this transaction. For this analysis, Blair analyzed a base case in which the
sources of funds to purchase all of Foodarama's capital stock and to refinance
Foodarama's bank debt was $39 million of new equity funds and $95 million of new
bank debt. Blair noted that the total amount of debt in the theoretical
leveraged buyout was $237.2 million (the total of the new bank debt and $142.2
million in rolled capital leases), an implied ratio of total debt to EBITDA
ratio of 5.4 times. Blair noted that this ratio was consistent with the amount
of debt raised for similar leveraged buyouts. Blair further assumed that the
weighted average cost of this debt was 10% and that transaction fees and
expenses in the theoretical leveraged buyout were $5.5 million. Using the
forecasts provided by Foodarama and the assumed capital structure and the other
assumptions identified above, Blair performed an analysis of the cash flow and
debt repayment that Foodarama would be expected to generate during calendar
years 2006 through 2010.
To arrive at a range of values that a leveraged buyout equity investor
might pay in this theoretical leveraged buyout, Blair assumed that such an
investor would require a target equity rate of return of 20% to 30% per year and
would expect to sell its investment at an assumed exit multiple of 5.5 to 6.5
times calendar year 2010 EBITDA. These exit multiples are similar to the
terminal values used in the discounted cash flow analysis. Based on these
assumptions, Blair estimated that in a theoretical leveraged buyout for all of
Foodarama, an investor would pay between $50.72 and $80.13 per share. This
valuation range compares to the $53 per share proposed to be paid in this
transaction.
Premiums Paid Analysis. Blair reviewed data from 210 publicly available
transactions occurring since January 1, 2003 and with enterprise values between
$25 million and $100 million in which less than 50% of the target was acquired.
Specifically, Blair analyzed the acquisition price as a premium to the closing
respective share price one day, one week and one month prior to the announcement
of the transaction, for all 210 transactions. Blair compared the resulting stock
price premiums for the reviewed transactions to the premiums implied by the per
share consideration to be paid to the unaffiliated shareholders pursuant to the
Tender Offer and Support Agreement based on Foodarama's respective stock prices
one day, one week and one month prior to the initial announcement of Purchaser's
proposed transaction on December 2, 2005. Information regarding the premiums
from Blair's analysis of such transactions at specified percentiles are provided
in the following table:
Implied
Per Share
Premium Period Premium 20% 40% 60% 80%
-------------- --------- ---------------------------------
1 Day Prior 43.2% 11.0% 11.6% 20.9% 50.6%
1 Week Prior 37.7% 11.2% 13.5% 23.9% 61.8%
1 Month Prior 35.9% 11.0% 14.5% 24.8% 74.7%
28
Blair noted that the one-day, one-week and one-month premiums implied by
the tender offer were between the 60th and 80th percentile of premiums paid in
the referenced transaction group.
General. In considering these analyses, including the fact that the
multiples and valuations for the proposed tender offer and merger were generally
near the lower end of the ranges for the selected public company, and in one
case below the range of multiples, comparable transactions and discounted cash
flow analyses, Blair gave weight to the likely effect of the Wakefern
Stockholders' Agreement in limiting alternative transactions to the proposed
Tender Offer and Merger, to the repeated statements by the members of the Saker
family that they were not interested in selling control of Foodarama and to
other potential risks relating to Foodarama's business. These potential risks
include but are not limited to the potential for slower sales growth or reduced
sales volume due to competitive nature of Foodarama's business with many
national and regional supermarket chains being in close proximity to Foodarama's
stores, the potential effects of Wal-Mart introducing Wal-Mart SuperCenters to
Foodarama's service territory and the potential reaction of vendors and the
financial markets to potential, future intangible charges. However, even without
adjustment for these factors, Blair noted that the multiples, valuations and
premiums implied by the proposed Offer and Merger were, with one exception,
within the multiple, valuation and premium ranges from the respective analyses.
The preparation of an opinion regarding fairness is a complex analytic process
involving various determinations as to the most appropriate and relevant methods
of financial analysis and the application of those methods to the particular
circumstances and, therefore, such an opinion is not readily susceptible to
partial analysis or summary description. The preparation of a fairness opinion
does not involve a mathematical evaluation or weighing of the results of the
individual analyses performed, but requires Blair to exercise its professional
judgment, based on its experience and expertise, in considering a wide variety
of analyses taken as a whole. Each of the analyses conducted by Blair was
carried out in order to provide a different perspective on the financial terms
of the proposed tender offer and add to the total mix of information made
available to the Special Committee. Blair did not form a conclusion as to
whether any individual analysis, considered in isolation, supported or failed to
support an opinion about the fairness of the consideration to be received by
unaffiliated shareholders pursuant to the Tender Offer and Support Agreement.
Rather, in reaching its conclusion, Blair considered the results of the analyses
in light of each other and ultimately reached its opinion based on the results
of all analyses taken as a whole. Blair did not place particular reliance or
weight on any particular analysis, but instead concluded its analyses, taken as
a whole, supported its determination. Accordingly, notwithstanding the separate
factors summarized above, Blair believes that its analyses must be considered as
a whole and that selecting portions of its analyses and the factors considered
by it, without considering all analyses and factors, may create an incomplete
view of the evaluation process underlying its opinion. No company or transaction
used in the above analyses as a comparison is directly comparable to Foodarama
or the Offer. In performing its analyses, Blair made numerous assumptions with
respect to industry performance, business and economic conditions and other
matters. The analyses performed by Blair are not necessarily indicative of
future actual values and future results, which may be significantly more or less
favorable than suggested by such analyses.
29
Blair is a nationally recognized securities firm and, as part of its
investment banking activities, is regularly engaged in the valuation of
businesses and their securities in connection with acquisition transactions and
other types of strategic combinations and acquisitions. Blair had not previously
provided any investment banking or financial advisory services to Foodarama.
Furthermore, in the ordinary course of its business, Blair and its affiliates
may beneficially own or actively trade common shares and other securities of
Foodarama's for its own account and for the accounts of customers, and,
accordingly, may at any time hold a long or short position in these securities.
Blair has had no material relationships with Foodarama, Purchaser or any members
of the Purchaser Group during the past two years.
The Special Committee hired Blair based, among other things, on its
qualifications and expertise in providing financial advice to companies in
Foodarama's industry and its reputation as a nationally recognized investment
banking firm.
Intent to Tender.
Each member of the Special Committee and each executive officer of
Foodarama who is not in the Purchaser Group but who is a Foodarama shareholder
has advised us that they intend to tender their Shares in the Offer including,
with respect to those executive officers, any Shares that they may acquire
pursuant to exercise of currently outstanding options.
Together, the members of the Purchaser Group currently own or control
approximately 508,974 Shares or approximately 51.5% of the outstanding Shares.
The Purchaser Group has advised us that those Shares will be contributed to
Purchaser upon the satisfaction or waiver of all conditions to the Offer, except
for up to an aggregate of 31,272 Shares which Joseph J. Saker, Richard J. Saker,
Nadine Saker Mockler, Denise Saker Marder and Joseph J. Saker, Jr. and other
members of the Saker family who are not members of the Purchaser Group own or
control and plan to sell to the Purchaser at the Offer Price to obtain liquidity
from their investment in Foodarama.
Item 5. Person/Assets, Retained, Employed, Compensated or Used.
Solicitations or Recommendations.
Each member of the Special Committee receives $500 for each telephonic
meeting of the Special Committee attended, $1,000 for each meeting of the
Special Committee attended in person which does not exceed three hours and
$1,500 for each meeting of the Special Committee attended in person which
exceeds three hours for his service as a member of the Special Committee.
The Special Committee retained Blair pursuant to the Blair Engagement
Letter. The Blair Engagement Letter provided for, among other things, payment of
a $100,000 retainer fee on execution of the Blair Engagement Letter and $250,000
on the rendering of a fairness opinion relating to the going private proposal
received from the Purchaser Group, regardless of the conclusions reached in the
opinion. The Blair Engagement Letter also provided that if Blair participated in
negotiations with Purchaser with respect to the going private transaction at the
Special Committee's request and the Special Committee concluded that Blair had
performed
30
those services to its satisfaction, then Foodarama would pay an additional
$50,000 fee to Blair. The Special Committee has directed Foodarama to pay this
additional fee. In addition, Foodarama also agreed to indemnify Blair against
certain potential losses and expenses, including liabilities under the federal
securities laws, arising out of its engagement and reimburse Blair for
out-of-pocket expenses.
Except as disclosed herein, neither Foodarama nor any person acting on its
behalf has employed, retained or agreed to compensate any person to make
solicitations or recommendations to Foodarama's shareholders concerning the
Offer.
Item 6. Interest in Securities of the Subject Company.
Securities Transactions.
No transactions in the Shares have been effected during the past 60 days
by Foodarama, or to Foodarama's knowledge, by any member of the Purchaser Group
or any of Foodarama's directors, executive officers, affiliates or subsidiaries.
Each of the members of the Purchaser Group has executed an Exchange
Agreement in which he or she agreed to exchange their Shares, except for up to
7,000 shares held by Joseph J. Saker, 250 shares held by Richard J. Saker, 4,000
Shares held by Nadine Saker Mockler, 10,000 shares held by Denise Saker Marder,
1,760 shares held by Richard Saker's wife and 8,262 shares held in trusts formed
for the benefit of the children of Joseph Saker, Jr., Nadine Saker Mockler and
Denise Saker Marder in Foodarama for shares of common stock in Purchaser upon
satisfaction or waiver of the conditions to the Offer. In addition, each member
of the Purchaser Group has deposited, or agreed to deposit, certificates
representing the Shares to be exchanged pursuant to the Exchange Agreement with
a custodian pursuant to a Custody Agreement which requires the custodian, as
proxy, to vote those Shares in favor of the Share Exchange and to exchange them
for shares of Purchaser pursuant to the Exchange Agreement.
Each of Joseph J. Saker, Denise Saker Marder (on behalf of herself and a
trust formed for the benefit of her child), Joseph J. Saker, Jr. (on behalf of
trusts formed for the benefit of his children), Nadine Saker Mockler (on behalf
of herself and trusts formed for the benefit of her children) have entered into
a Custody Agreement and Limited Power of Attorney pursuant to which he or she
has deposited or agreed to deposit the Shares owned or controlled by him or her
that are not being exchanged pursuant to the Exchange Agreement with a custodian
and authorized the custodian to tender such Shares in the Offer.
Except as set forth in the Offer to Purchase, neither Purchaser nor any
member of the Purchaser Group has any agreement, arrangement, understanding or
relationship with any other person with respect to any securities of Foodarama,
including, without limitation, any agreement, arrangement, understanding or
relationship concerning the transfer or the voting of any securities of
Foodarama, joint ventures, loan or option arrangements, puts or calls,
guaranties of loans, guaranties against loss or the giving or withholding of
proxies, consents or authorizations.
Except as set forth in the Offer to Purchase, neither Purchaser nor any
member of the Purchaser Group has any security of Foodarama that is pledged or
otherwise subject to a
31
contingency that would give another person the power to direct the voting or
disposition of such security except that 59,000 Shares owned by Richard J. Saker
and 8,000 Shares owned by Denise Saker Marder are pledged to secure margin loans
provided by a broker. Richard J. Saker's margin loans will be repaid with the
proceeds of a loan to him by the Purchaser which will be funded through the
financing provided by GMAC at the time of the consummation of the Offer, and
Denise Saker Marder's margin loans will be repaid with funds received in
connection with the tender of such Shares in the Offer.
Item 7. Purposes of the Transaction and Plans or Proposals.
Subject Company Negotiations.
Except as indicated in Item 4 above, no negotiations are being undertaken
or are underway by Foodarama in response to the Offer, which relate to a tender
offer or other acquisition of Foodarama's securities by Foodarama, any
subsidiary of Foodarama or any other person.
Except as indicated in Item 4 above, no negotiations are being undertaken
or are underway by Foodarama in response to the Offer, which relate to, or would
result in, (i) an extraordinary transaction, such as a merger, reorganization or
liquidation, involving Foodarama or any subsidiary of Foodarama, (ii) a
purchase, sale or transfer of a material amount of assets by Foodarama or any
subsidiary of Foodarama, or (iii) any material change in the present dividend
rate or policy, or indebtedness or capitalization of Foodarama.
Except as indicated in Items 3 and 4 above, there are no transactions,
board resolutions, agreements in principle or signed contracts in response to
the Offer that relate to or would result in one or more of the matters referred
to in this Item 7.
Item 8. Additional Information.
Other Material Information.
None.
Item 9. Exhibits.
(a)(1)(i) Offer to Purchase (incorporated by reference to Exhibit
(a)(1)(i) of Schedule TO filed by the Purchaser Group on June
16, 2006)
(a)(1)(ii) Letter of Transmittal (incorporated by reference to Exhibit
(a)(1)(ii) of Schedule TO filed by the Purchaser Group on June
16, 2006)
(a)(5) Opinion of William Blair & Company, L.L.C., dated March 2,
2006 (attached hereto as Annex A)
(e)(1) Foodarama Supermarkets, Inc. 2001 Stock Incentive Plan
(incorporated by reference to Appendix B to Foodarama's Proxy
Statement filed on February 26, 2001)
32
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
FOODARAMA SUPERMARKETS, INC.
/s/ Michael Shapiro
--------------------------------
Name: Michael Shapiro
Title: Chief Financial Officer
Date: June 16, 2006
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ANNEX A
[Letterhead of William Blair & Company, L.L.C.]
March 2, 2006
Special Committee of the Board of Directors
Foodarama Supermarkets, Inc.
922 Highway 33
Suite 1, Building 6
Freehold, NJ 07728
Gentlemen:
You have requested our opinion as to the fairness, from a financial point of
view, to the holders of outstanding shares of common stock of Foodarama
Supermarkets, Inc. (the "Company") other than shareholders of Saker Holdings
Corp. (the "Minority Shareholders") of $53.00 per share in cash (the
"Consideration") proposed to be paid to the Minority Shareholders pursuant to a
Tender Offer and Support Agreement (the "Agreement") substantially in the form
of the draft (the "Draft Agreement") dated February 27, 2006 by and among Saker
Holdings Corp. (the "Purchaser") and the Company. Pursuant to the terms of and
subject to the conditions set forth in the Agreement, the Purchaser will tender
for all shares held by the Minority Shareholders, which tender offer will be
conditioned on, among other things, the approval by the Company's shareholders
of a share exchange pursuant to which each outstanding share of the Company's
common stock will be exchanged for one share of common stock of a newly formed
Delaware corporation, and which tender offer, if completed, will be followed by
a merger of the Delaware corporation into the Purchaser pursuant to which the
Minority Shareholders who do not tender shares in the tender offer would receive
the Consideration (such transactions are referred to herein as the "Proposed
Transactions").
In connection with our review of the Proposed Transactions and the preparation
of our opinion contained herein, we have examined: (a) the Draft Agreement; (b)
certain audited historical financial statements of the Company for the three
fiscal years ended October 29, 2005; (c) the Company's report on Form 10-K for
the year ended October 29, 2005; (d) certain internal business, operating and
financial information and forecasts of the Company prepared by the senior
management of the Company (the "Forecasts"); (e) the Purchaser's bank loan
commitment letter provided by GMAC dated as of November 23, 2005, as amended on
February 28, 2006; (f) agreements dated as of September 18, 1987, March 29, 1996
and August 20, 1987, as amended February 20, 1992, between the Company and
Wakefern Food Corporation, the By-Laws of Wakefern Food Corporation and certain
information provided by the senior management of the Company related to the
Company's potential Wakefern co-op withdrawal liability (collectively, the
"Wakefern Agreements"); (g) financial and stock market information of the
Company compared with those of certain other publicly traded companies we deemed
relevant; (h) information regarding financial terms of certain other business
combinations we deemed relevant; (i) current and historical market prices and
trading volumes of the common stock of the Company; and (j) certain other
publicly available information on the Company we deemed
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relevant. We have also held discussions with members of the senior management of
the Company to discuss the foregoing and to discuss the Company's current
strategic and financial position. We have considered other matters which we have
deemed relevant to our inquiry and have taken into account such accepted
financial and investment banking procedures and considerations as we deemed
relevant.
In rendering the opinion contained herein, we have assumed and relied, without
independent verification, upon the accuracy and completeness of all the
information examined by or otherwise reviewed or discussed with us for purposes
of such opinion, including without limitation the Forecasts provided by senior
management of the Company. We have not made or obtained an independent valuation
or appraisal of the assets, liabilities or solvency of the Company. We have been
advised by the senior management of the Company that the Forecasts examined by
us have been reasonably prepared on bases reflecting the best currently
available estimates and judgments of the senior management of the Company. In
that regard, we have assumed, with your consent, that (i) the Forecasts will be
achieved in the amounts and at the times contemplated thereby and (ii) all
material assets and liabilities (contingent or otherwise) of the Company are as
set forth in the Company's financial statements or other information made
available to us. We express no opinion with respect to the Forecasts or the
estimates and judgments on which they are based. We have assumed, with your
consent, that the Wakefern Agreements significantly limit other parties that
would be deemed Qualified Successors (as defined in the Wakefern Agreements) and
significantly increase the effective price that a third party who is not a
Qualified Successor would have to pay to consummate an alternative transaction
to the Proposed Transactions, and therefore significantly limit alternatives to
the Proposed Transactions. For the purposes of this opinion, we did not
consider, and our opinion does not address, the relative merits of the Proposed
Transactions as compared to any alternative business strategies that might exist
for the Company or the effect of other transactions in which the Company might
engage. Our opinion contained herein is based upon economic, market, financial
and other conditions existing on, and other information disclosed to us as of,
the date of this letter. It should be understood that, although subsequent
developments may affect the opinion contained herein, pursuant to the terms of
our engagement, we are obligated to update, revise or reaffirm such opinion,
upon the request of the Special Committee, only if the financial terms of the
Proposed Transactions are modified in a manner which is beneficial to the
Minority Shareholders within 30 days after the date of this opinion. We have
relied as to all legal, accounting and tax matters on advice of the Company's
and the Special Committee's advisors. We have assumed that the Agreement that is
executed by the Company will substantially conform to the Draft Agreement and
that the Proposed Transactions will be consummated substantially on the terms
described in the Draft Agreement, without any amendment or waiver of any
material terms or conditions. We were not requested to, nor did we, seek any
expression of interest from any other parties with respect to any alternative
transaction to the Proposed Transactions.
William Blair & Company has been engaged in the investment banking business
since 1935. We continually undertake the valuation of investment securities in
connection with public offerings, private placements, business combinations,
estate and gift tax valuations and similar transactions. In the ordinary course
of our business, we may from time to time trade the securities of the Company
for our own account and for the accounts of customers, and accordingly may at
any
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time hold a long or short position in such securities. We have acted as the
financial advisor to the Special Committee in connection with the Proposed
Transactions and will receive a fee from the Company for our services. In
addition, the Company has agreed to indemnify us against certain liabilities
arising out of our engagement.
Our advisory services and our opinion were provided for the use and benefit of
the Board of Directors of the Company, or its Special Committee, in connection
with its consideration of the transactions contemplated by the Agreement. Our
opinion is limited to the fairness, from a financial point of view, to the
Minority Shareholders of the Consideration in connection with the Proposed
Transactions, and we do not address the merits of the underlying decision by the
Company to engage in the Proposed Transactions, and this opinion does not
constitute a recommendation to any shareholder to tender its shares. It is
understood that this letter may not be disclosed or otherwise referred to
without our prior written consent, except that the opinion may be included in
its entirety in any tender offer, share exchange, proxy solicitation or similar
documents supplied to the shareholders by the Company.
Based upon and subject to the foregoing, it is our opinion as investment bankers
that, as of the date hereof, the Consideration is fair, from a financial point
of view, to the Minority Shareholders.
Very truly yours,
WILLIAM BLAIR & COMPANY, L.L.C.
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