Exhibit (d)(6)
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT, dated as of March 2, 2006 (this "Agreement"), is
by and among Saker Holdings Corp., a Delaware corporation (the "Purchaser"), and
each of the parties listed on Exhibit A hereto (each in his, her or its
individual capacity, a "Stockholder," and, collectively, the "Stockholders").
W I T N E S S E T H:
WHEREAS, the Purchaser has agreed to commence a cash tender offer (the
"Offer") to purchase all of the outstanding shares of Foodarama Supermarkets,
Inc. (the "Company" or "Foodarama") not owned by the Stockholders at a price of
Fifty-Three Dollars ($53.00) per share; and,
WHEREAS, each Stockholder has agreed to exchange that number of shares of
Common Stock, $1.00 par value, of Foodarama set forth beside such Stockholder's
name on Exhibit "A" (the "Exchange Shares") for an equal number of newly issued
shares of capital stock of the Purchaser;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
Purchaser and each Stockholder hereby agree as follows:
ARTICLE I.
COVENANTS OF THE STOCKHOLDERS
Section 1.1. No Inconsistent Arrangements. Except as contemplated by this
Agreement, the Offer and the merger of FSM-Delaware, Inc. with and into the
Purchaser (the "Merger"), no Stockholder shall during the term of this
Agreement, (i) transfer (which term shall include, without limitation, any sale,
assignment, gift, pledge, hypothecation or other disposition), or consent to any
transfer of, any or all of the Exchange Shares or any interest therein, or
create or permit to exist any Encumbrance (as defined in Section 3.3 hereof) on
such Exchange Shares, except for certain liens on stock owned by Xxxxxxx Xxxxx
securing margin loans which will be released immediately prior to the
consummation of the Offer through the repayment of such margin loans in full
with the proceeds of a loan made by the Purchaser, (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of any
or all of the Exchange Shares or any interest therein, except for any
stockholders agreement by and among the parties hereto which shall become
effective upon consummation of the Offer, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to the Exchange
Shares, (iv) deposit the Exchange Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Exchange Shares, except for
any stockholders agreement by and among the parties hereto which shall become
effective upon consummation of the Offer, or (v) take any other action that
would in any way restrict, limit or interfere with the performance of his, her
or its obligations hereunder or the transactions contemplated hereby.
Section 1.2. Waiver of Dissenters' Rights. Each Stockholder hereby waives
any rights to dissent from the Merger.
Section 1.3. Stop Transfer. No Stockholder shall request that the Company
register the transfer of any certificate or uncertificated interest representing
any of the Exchange Shares, unless such transfer is made in compliance with this
Agreement.
Section 1.4. No Tender. No Stockholder shall tender any of his, her or its
Exchange Shares in the Offer.
Section 1.5. Indemnity. The representations, warranties and agreements
made by each Stockholder herein shall survive the closing of this Exchange (as
defined in Section 2.1) as anticipated hereby. Each Stockholder hereby agrees to
indemnify and hold harmless the Purchaser from and against any and all loss,
liability, claim, damage and expense (including, without limitation, attorney's
fees and disbursements) suffered or incurred as a result of a misrepresentation
or breach of any warranty or agreement made by such Stockholder in this
Agreement.
ARTICLE II.
EXCHANGE OF SHARES
Section 2.1. Exchange. The equity capitalization of the Purchaser
immediately following the Exchange (as defined below) shall be as set forth on
Exhibit B hereto (the "Purchaser Equity Schedule"). Each Stockholder shall, at
or before the closing of the Offer, exchange such Stockholder's Exchange Shares
for newly-issued shares of capital stock of the Purchaser (the "Purchaser
Shares") consistent with the Purchaser Equity Schedule (the "Exchange").
Section 2.2. Certain Warranties. The transfer by the Stockholders of the
Exchange Shares to the Purchaser pursuant to this Agreement shall pass to and
unconditionally vest in the Purchaser good and valid title to the Exchange
Shares, free and clear of all Encumbrances whatsoever.
Section 2.3. Disclosure. Each Stockholder hereby authorizes the Purchaser
to publish and disclose in the Offer documents (including all documents and
schedules filed with the SEC), such Stockholder's identity and ownership of the
Exchange Shares and the nature of his, her or its commitments, arrangements and
understandings under this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
By executing this Agreement, each Stockholder makes the following
representations, declarations and warranties to the Purchaser, with the intent
and understanding that the Purchaser will rely thereon:
Section 3.1. Due Authorization; Enforceability. Such Stockholder has all
requisite power and authority to execute, deliver and perform this Agreement,
and to consummate the transactions contemplated hereby. The execution, delivery
and performance of this Agreement
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and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of such Stockholder. This
Agreement has been duly executed and delivered by or on behalf of such
Stockholder and constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
Section 3.2. No Conflicts; Required Filings and Consents.
(a) Except as would not impair or delay the ability of such
Stockholder to consummate the transactions contemplated hereby, the execution
and delivery of this Agreement by such Stockholder does not, and the performance
of this Agreement by such Stockholder will not, (i) subject to the filings
referred to in Section 3.2(b), conflict with or violate any law applicable to
such Stockholder or by which such Stockholder or any of such Stockholder's
assets is bound or affected or (ii) subject to the release of liens on stock
owned by Xxxxxxx Xxxxx securing margin loans which will be released
contemporaneous with the consummation of the Offer through the repayment of such
margin loans in full with the proceeds of a loan made by the Purchaser, result
in any breach of or constitute a default (or any event that with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, acceleration or cancellation of, or result in the creation of an
Encumbrance on any assets of such Stockholder, including, without limitation,
the Exchange Shares, pursuant to any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Stockholder is a party or by which such Stockholder or any of such
Stockholder's assets is bound or affected.
(b) Except as would not impair or delay the ability of such
Stockholder to consummate the transactions contemplated hereby, the execution
and delivery of this Agreement by such Stockholder does not, and the performance
of this Agreement by such Stockholder will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority (other than any necessary filing under the Securities
Exchange Act of 1934, as amended).
Section 3.3. Title to Exchange Shares. Except as disclosed to the
Purchaser in writing by such Stockholder, such Stockholder is the sole record
and beneficial owner of the Exchange Shares, free and clear of any pledge, lien,
security interest, mortgage, charge, claim, equity, option, proxy, voting
restriction, voting trust or agreement, understanding, arrangement, right of
first refusal, limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind (collectively, "Encumbrances"), except for Encumbrances
arising pursuant to or referred to in this Agreement.
Section 3.4. No Finder's Fee. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder. Such Stockholder, on behalf of itself and its affiliates, hereby
acknowledges that it is not entitled to receive any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby. Such Stockholder agrees and acknowledges that
the Exchange is being made without an underwriter or placement agent who would
have responsibilities to any of the Stockholders, and accordingly,
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such Stockholder agrees and acknowledges such Stockholder's sole responsibility
for a "due diligence" investigation of the Purchaser. Each Stockholder
acknowledges the existence of a letter agreement dated April 15, 2005 between
Conway, DelGenio, Xxxxx & Co., LLC and each of Xxxxxxx X. Xxxxx and Xxxxxx X.
Xxxxx in connection with the Offer and related transactions.
Section 3.5. Investment Invent.
(a) SUCH STOCKHOLDER UNDERSTANDS THAT SUCH STOCKHOLDER MUST BEAR THE
ECONOMIC RISK OF AN INVESTMENT IN THE PURCHASER SHARES FOR AN INDEFINITE PERIOD.
SUCH STOCKHOLDER IS INVESTING IN THE PURCHASER SHARES FOR SUCH STOCKHOLDER'S OWN
ACCOUNT AS PRINCIPAL FOR INVESTMENT AND NOT WITH A VIEW TOWARD RESALE OR
DISTRIBUTION.
(b) The Stockholder has been advised and is aware that: (i) there is
no public market for the Purchaser Shares and it is not likely that any public
market will develop; and (ii) the Purchaser Shares have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or the
securities laws of any state or other jurisdiction and, therefore, cannot be
sold except in compliance with such laws. Such Stockholder agrees not to sell or
otherwise dispose of the Purchaser Shares acquired by such Stockholder unless
the Purchaser Shares are subsequently registered under the Securities Act and
such state securities laws as are applicable or unless there are available
exemptions from such registration that are supported by an opinion of counsel
for such Stockholder, which opinion is satisfactory in form and substance to the
Purchaser. Such Stockholder has no present arrangement, understanding or
agreement for transferring or disposing of any or all shares of the Purchaser.
Such Stockholder agrees that a legend to the foregoing effect may be placed upon
any and all certificates representing shares of the Purchaser.
(c) Stockholder hereby agrees to cooperate with the Purchaser in all
of its efforts to comply with any applicable federal, state or local statutes
and regulations.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to each Stockholder as
follows:
Section 4.1. Due Organization; Authorization; Enforceability. The
Purchaser is duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Purchaser has all requisite corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement and the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Purchaser. This Agreement has been duly executed and
delivered by the Purchaser and constitutes a legal, valid and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its
terms.
Section 4.2. Investment Intent. The Purchaser will be acquiring the
Exchange Shares pursuant to the Exchange for its own account and not with a view
to distribution or resale in any manner which would be in violation of the
Securities Act.
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ARTICLE V.
MISCELLANEOUS
Section 5.1. Termination. This Agreement shall terminate and be of no
further force and effect: (i) upon the written consent of all of the parties
hereto; and (ii) automatically and without any required action of the parties
hereto upon the withdrawal of the Offer. No such termination of this Agreement
shall relieve any party hereto from any liability for any breach of this
Agreement prior to termination.
Section 5.2. Further Assurance. From time to time, at another party's
request and without additional consideration, each party hereto shall execute
and deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
Section 5.3. Specific Performance. Each Stockholder acknowledges that if
such Stockholder fails to perform any of its obligations under this Agreement,
immediate and irreparable harm or injury would be caused to the Purchaser for
which money damages would not be an adequate remedy. In such event, each
Stockholder agrees that the Purchaser shall have the right, in addition to any
other rights that it may have, to specific performance of this Agreement.
Accordingly, if the Purchaser should institute an action or proceeding seeking
specific enforcement of the provisions hereof, each Stockholder hereby waives
the claim or defense that the Purchaser has an adequate remedy at law and hereby
agrees not to assert in any such action or proceeding the claim or defense that
such a remedy at law exists. Each Stockholder further agrees to waive any
requirements for the securing or posting of any bond in connection with
obtaining any such equitable relief.
Section 5.4. Notice. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) If to the Purchaser:
Saker Holdings Corp.
x/x Xxxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
(b) If to a Stockholder:
To the appropriate address shown on Exhibit A.
Section 5.5. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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Section 5.6. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the maximum extent
possible.
Section 5.7. Entire Agreement; No Third-Party Beneficiaries. This
Agreement constitutes the entire agreement among the parties hereto and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter of this Agreement.
Section 5.8. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part by any of the parties, other than by operation of law;
provided, however, that the Purchaser may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly-owned
subsidiary of the Purchaser, but no such assignment shall relieve the Purchaser
of its obligations hereunder if such assignee does not perform such obligations.
Each Stockholder agrees that this Agreement and such Stockholder's obligations
hereunder shall attach to the Exchange Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of the Exchange Shares
shall pass by operation of law.
Section 5.9. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New Jersey, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof. Each of the parties hereto (a) hereby irrevocably and
unconditionally consents to submit to the personal jurisdiction of the courts of
the State of New Jersey and of the United States of America located in the State
of New Jersey in the event any dispute arises out of this Agreement or any of
the transactions contemplated by this Agreement, (b) shall not object to or
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, and (c) shall not bring any action relating to
this Agreement or any of the transactions contemplated by this Agreement in any
other court.
Section 5.10. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 5.11. Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 5.12. Waiver. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document
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delivered pursuant hereto and (c) waive compliance by the other parties hereto
with any of their agreements or conditions contained herein. Any agreement on
the part of a party hereto to any such extension or waiver shall be valid only
as against such party and only if set forth in an instrument in writing signed
by such party. The failure of any party hereto to assert any of its rights under
this Agreement or otherwise shall not constitute a waiver of those rights.
Section 5.13. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same instrument and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
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IN WITNESS WHEREOF, the parties have executed this Exchange Agreement as
of the date first above written.
PURCHASER
Saker Holdings Corp.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------------
Xxxxxx X. Xxxxx, Xx.
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxx Xxxxx
-----------------------------------
Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxx Xxxxxxx
-----------------------------------
Xxxxxx Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxx Xxxxxx
/s/ Xxxxxxx Xxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxx Xxxxx
Xxxxxxx X. Xxxxx Trust f/b/o
Xxxxxxx Xxxxx Xxxxx
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx
Xxxxxx Xxxxx Family Partnership, L.P.
By: Saker Family Corporation, General Partner
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx, President
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EXHIBIT A
LIST OF OWNED SHARES
Number of
Name of Shareholder Shares Address
------------------------------------ --------- -------------------------------
Xxxxxx X. Xxxxx 166,597 000 Xxxxx Xxxxxx, Xxx. 000
Xxxx Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx 113,666 0 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxx, Xx. 30,341 0 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxx 40,041 000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxx 13,378 000X Xxxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxx-Xxxxxxx 4,700 00 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
Xxxxxx Xxxxx Xxxxxx 10,377 c/o Box Brothers
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Xxxxxxx Xxxxx Xxxxx 1,235 0 Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Xxxxxxx X. Xxxxx Trust 1,377 0 Xxxxxx Xxxxx
f/b/o Xxxxxxx Xxxxx Xxxxx Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxx Family Partnership, L.P 85,000 c/o Saker Family Corporation
At Foodarama Supermarkets, Inc.
000 Xxxxxxx 00
Xxxxxx, XX 00000
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EXHIBIT B
PURCHASER EQUITY SCHEDULE
Name of Shareholder Number of Shares Number of Vested Options
------------------------------ ---------------- ------------------------
Xxxxxx X. Xxxxx 166,597 40,000
Xxxxxxx X. Xxxxx 113,666 50,000
Xxxxxx X. Xxxxx, Xx. 30,341
Xxxxxx X. Xxxxx 40,041
Xxxxxx Xxxxx 13,378
Xxxxxx Xxxxx Xxxxxxx 4,700
Xxxxxx Xxxxx Xxxxxx 10,377
Xxxxxxx Xxxxx Xxxxx 1,235
Xxxxxxx X. Xxxxx Trust 1,377
f/b/o Xxxxxxx Xxxxx Xxxxx
Saker Family Partnership, L.P. 85,000
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