EXHIBIT 99.2
Tender Offer and Support Agreement
This Tender Offer and Support Agreement, dated as of this 2nd day of
March, 2006 (this "Agreement"), by and between Foodarama Supermarkets, Inc., a
New Jersey corporation (the "Company"), and Saker Holdings, Corp., a Delaware
corporation ("Purchaser").
WHEREAS, Purchaser has submitted to the Board of Directors of the Company
(the "Company Board") a proposal to acquire all of the outstanding shares of the
Company's common stock not owned by the shareholders of Purchaser (the "Shares")
which contemplates that Purchaser will make a tender offer for such Shares (the
"Offer") at a price of Fifty Three Dollars ($53) per share (the "Offer Price")
which shall be conditioned upon, among other things, the approval by the
Company's shareholders of an agreement and plan of share exchange (the
"Agreement and Plan of Share Exchange") pursuant to which each outstanding share
of the Company's common stock ("Company Common Stock") would be exchanged for
one share of common stock of a Delaware corporation (the "Delaware Corporation")
which would be initially organized as a wholly owned subsidiary of the Company
(the "Share Exchange");
WHEREAS, the Special Committee of the Company Board created to consider,
negotiate and make recommendations with respect to the Offer (the "Special
Committee") has advised Purchaser that it will recommend to the shareholders of
the Company that they (i) accept the Offer and tender their Shares in the Offer
and (ii) vote in favor of the Agreement and Plan of Share Exchange
(collectively, the "Recommendations");
WHEREAS, in reliance upon the Recommendations, Purchaser proposes to
proceed with the Offer and will incur significant fees and expenses in
connection therewith;
WHEREAS, if each of the Offer and Share Exchange are completed, Purchaser
will merge the Delaware Corporation with and into Purchaser in a short-form
merger transaction in which the shareholders of the Delaware Corporation (other
than Purchaser) will receive a cash payment for each of their shares of the
Delaware Corporation which would be equal to the per Share price paid for Shares
pursuant to the Offer (the "Merger");
WHEREAS, Purchaser and the Special Committee believe that the Offer will
provide shareholders of the Company with an opportunity to liquefy their Shares
and receive a substantial economic benefit which would not exist in the absence
of the Offer and, therefore, it is in the best interests of the Company to take
such actions as may be necessary to facilitate such Offer, including agreeing to
pay a termination fee if the Special Committee withdraws or modifies the
Recommendations;
WHEREAS, Purchaser and the Company wish to make certain representations,
warranties, covenants and agreements in connection with the Offer and the Share
Exchange and also to prescribe various conditions to the Offer and the Share
Exchange;
NOW, THEREFORE, in consideration of the mutual covenants and premises set
forth herein and other valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
5
1. Certain Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Business Day" means any day besides a Saturday, Sunday or federal holiday
of the United States.
"Financing Condition" means that Purchaser shall have received the
proceeds contemplated by the GMAC Letter.
"GMAC Letter" means the commitment letter dated as of November 23, 2005
issued by GMAC Commercial Finance LLC to Purchaser.
"Governmental Entity" means any United States federal, state, local or any
foreign government, governmental, regulatory or administrative authority,
board, bureau, department, instrumentality, agency, commission, or
quasi-governmental unit, or any court, tribunal or judicial or arbitral
body.
"Independent Committee" means a committee of the Company Board (which may
be the Special Committee) consisting solely of directors who are members
of the Special Committee.
"Long-Form Merger" means a merger, following the completion of the Share
Exchange and either a Tender Shortfall or the withdrawal or termination of
the Offer by Purchaser, pursuant to which the Delaware Corporation would
be merged with and into Purchaser and which would result in the
shareholders of the Delaware Corporation, other than Purchaser, receiving
an aggregate cash payment with respect to their shares of the Delaware
Corporation which is not less than the aggregate cash consideration they
would have received if their Shares were acquired at the Offer Price
pursuant to the Offer.
"Material Adverse Effect" means any one or more events, changes, effects
or developments that, individually or in the aggregate, have had a
material adverse effect on the business, operations, prospects, assets,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, excluding any effects related to or
resulting from (i) events affecting the United States or global economy or
capital or financial markets generally, (ii) changes in conditions in the
supermarket industry, (iii) changes in laws or in the authoritative
interpretations thereof or in regulatory guidance related thereto, (iv)
earthquakes or similar catastrophes, or acts of war, sabotage, terrorism,
military action or any escalation or worsening thereof, or (v) this
Agreement and the other agreements contemplated hereby, the announcement
thereof, or the transactions contemplated thereby, except (with respect to
the matters referred to in (i) through (iv) above) to the extent that such
matters have a disproportionate effect on the Company relative to its
competitors in the supermarket industry.
"Majority Tender Condition" means that there shall have been validly
tendered and not withdrawn prior to the expiration of the Offer at least a
majority of the outstanding shares that are not beneficially owned by the
shareholders of Purchaser.
"Minimum Tender Condition" means that there shall have been validly
tendered and not withdrawn prior to the expiration of the Offer that
number of shares of Company Common Stock which, together with that number
of shares of Company Common Stock
6
owned by Purchaser and its shareholders, would represent more than ninety
percent (90%) of the Shares.
"Takeover Proposal" means (i) any proposal for a merger, consolidation,
dissolution, recapitalization or other business combination involving the
Company or (ii) any proposal or offer to acquire in any manner, directly
or indirectly, over 15% of the equity securities or consolidated total
assets of the Company, in each case other than pursuant to the Offer, the
Share Exchange, the Merger or the Long-Form Merger.
"Tender Shortfall" means the consummation of the Offer under circumstances
in which Purchaser owns, after the consummation of the Offer, less than
90% of the Company Common Stock.
2. The Offer and Other Purchaser Actions.
(a) Commencement and Expiration of the Offer. Subject to the conditions
of this Agreement, as promptly as practicable (but in no event more
than five (5) Business Days) after the date that the Securities and
Exchange Commission (the "SEC") has advised the Company that it has
no further comment on the Proxy Materials (as defined in Section
4(c) below) or Other SEC Filings (as defined in Section 4(c) below),
Purchaser shall commence the Offer within the meaning of the
applicable rules and regulations of the SEC. The initial expiration
date of the Offer shall be at 12:00 midnight Eastern time on the
35th day following the commencement of the Offer (determined using
Rules 14d-1(g)(3) and 14d-2 promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")).
Notwithstanding any other term of the Offer or this Agreement,
Purchaser shall not be required to accept for payment or, subject to
any applicable rules and regulations of the SEC, including Rule
14e-1(c) under the Exchange Act (relating to Purchaser's obligation
to pay for or return tendered shares of Company Common Stock
promptly after the termination or withdrawal of the Offer), to pay
for any shares of Company Common Stock tendered pursuant to the
Offer unless all of the Tender Offer Conditions set forth in Exhibit
A (the "Tender Offer Conditions") shall have been met. Purchaser
expressly reserves the right to waive any Tender Offer Condition or
any other condition to the Offer or modify the terms of the Offer,
except that, without the consent of the Company, Purchaser shall not
(i) reduce the number of shares of Company Common Stock subject to
the Offer, (ii) reduce the price per share of Company Common Stock
to be paid pursuant to the Offer, (iii) modify the Offer in any
manner adverse to the holders of Shares or add to the Tender Offer
Conditions, (iv) except as provided in Section 2(b), extend the
Offer, or (v) change the form of consideration payable in the Offer.
(b) Purchaser's Ability to Extend the Offer. Notwithstanding the
provisions of Section 2(a), Purchaser may, without the consent of
the Company, (i) if at the scheduled or any extended expiration date
of the Offer (whether extended pursuant to this clause (b) or
otherwise) any of the conditions to Purchaser's obligation to
purchase shares of Company Common Stock are not satisfied or waived,
extend the Offer beyond the then applicable expiration date thereof
for a time period reasonably necessary to permit such condition to
be satisfied,
7
(ii) extend the Offer for any period required by any rule, regulation,
interpretation or position of the SEC or the staff thereof
applicable to the Offer and (iii) if at the scheduled or any
extended expiration date of the Offer all of the Tender Offer
Conditions have been satisfied or waived, Purchaser may extend the
Offer pursuant to an amendment to the Offer providing for a
"subsequent offering period" not to exceed twenty (20) business
days, to the extent permitted under, and in compliance with, Rule
14d-11 under the Exchange Act. Any such "subsequent offering period"
shall not, unless otherwise consented to in writing by the
Purchaser, extend beyond the Outside Date (as defined in Section
2(c) below)
(c) Company's Ability to Extend the Offer.
(i) In the event that the Minimum Tender Condition has not been
satisfied or waived at the scheduled expiration date of the
Offer, at the request of the Company, Purchaser shall extend
the expiration date of the Offer in such increments as
Purchaser may determine until the earliest to occur of (A) the
satisfaction or waiver of such condition, (B) Purchaser
reasonably determines, after the date that is 90 days from the
date of commencement of the Offer, that such condition to the
Offer is not capable of being satisfied on or prior to June
30, 2006 (the "Outside Date"), (C) the termination of this
Agreement in accordance with its terms and (D) the Outside
Date.
(ii) In the event that a failure to satisfy the Tender Offer
Condition in subsection (f) of Exhibit A shall exist and the
cure period described therein shall not have expired at the
scheduled expiration date of the Offer, at the request of the
Company, Purchaser shall extend the expiration date of the
Offer in such increments as Purchaser may determine, but not
greater than ten (10) days, until the earliest to occur of (A)
the cure of such failure, (B) the expiration of such cure
period, (C) the termination of this Agreement in accordance
with its terms and (D) the Outside Date.
(d) Payment Acceptance. On the terms and subject to the conditions of
the Offer and this Agreement, Purchaser shall accept for payment and
pay for all Shares validly tendered and not withdrawn pursuant to
the Offer that Purchaser becomes obligated to purchase pursuant to
the Offer promptly after the expiration of the Offer.
(e) Option Treatment. Each Share subject to an option (other than an
option held by a shareholder of Purchaser which shall be cancelled
or assumed by the Purchaser) outstanding immediately prior to the
consummation of the Offer shall be settled in cash by Purchaser at
the time of the consummation of the Offer for an amount equal to the
positive difference between the Offer Price and the per Share
exercise price, or, if the per Share exercise price equals or
exceeds the Offer Price, the outstanding option shall be cancelled
upon the consummation of the Offer.
(f) SEC Filings. On the date of commencement of the Offer, Purchaser
shall file with the SEC a Tender Offer Statement on Schedule TO with
respect to the Offer,
8
which shall contain an offer to purchase and a related letter of
transmittal and summary advertisement (such Schedule TO and the
documents included therein pursuant to which the Offer will be made,
together with any supplements or amendments thereto, the "Offer
Documents"). Each of Purchaser and the Company shall promptly
correct any information provided by it for use in the Offer
Documents if and to the extent that such information shall have
become false or misleading in any material respect, and Purchaser
shall take all steps necessary to amend or supplement the Offer
Documents and to cause the Offer Documents as so amended or
supplemented to be filed with the SEC and to be disseminated to the
Company's shareholders, in each case as and to the extent required
by applicable Federal securities law. Purchaser shall give the
Company and its counsel a reasonable opportunity to review and
comment on the Offer Documents prior to their being filed with the
SEC or disseminated to the shareholders of the Company. Purchaser
shall provide the Company and its counsel in writing with any
comments Purchaser or its counsel may receive from the SEC or its
staff with respect to the Offer Documents promptly after the receipt
of such comments and shall provide the Company and its counsel with
a reasonable opportunity to participate in the response of Purchaser
to such comments.
(g) The Merger. If each of the Offer and Share Exchange is consummated
under circumstances where the Minimum Tender Condition has been
satisfied, Purchaser shall cause the Merger to be consummated in
accordance with the Delaware General Corporation Law.
3. Company Actions.
(a) The Company hereby approves of and consents to the Offer, the Share
Exchange and the other transactions contemplated by this Agreement
(collectively, the "Transactions").
(b) On the date the Offer Documents are filed with the SEC, the Company
shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as
amended and supplemented from time to time, the "Schedule 14D-9"),
describing the recommendations referred to in Section 5(d), and
shall mail the Schedule 14D-9 to the holders of Company Common
Stock. Each of the Company and Purchaser shall promptly correct any
information provided by it for use in the Schedule 14D-9 if and to
the extent that such information shall have become false or
misleading in any material respect, and the Company shall take all
steps necessary to amend or supplement the Schedule 14D-9 and to
cause the Schedule 14D-9 as so amended or supplemented to be filed
with the SEC and disseminated to the Company's shareholders, in each
case as and to the extent required by applicable Federal securities
laws. The Company shall provide Purchaser and its counsel in writing
with any comments the Company or its counsel may receive from the
SEC or its staff with respect to the Schedule 14D-9 promptly after
the receipt of such comments.
(c) In connection with the Offer, the Company shall cause its transfer
agent to promptly furnish Purchaser with mailing labels containing
the names and
9
addresses of the record holders of Company Common Stock as of a
recent date and of those persons becoming record holders subsequent
to such date, together with copies of all lists of shareholders,
security position listings and computer files and all other
information as Purchaser may reasonably request in the Company's
possession or control regarding the beneficial owners of Company
Common Stock, and shall furnish to Purchaser such information and
assistance (including updated lists of shareholders, security
position listings and computer files) as Purchaser may reasonably
request in communicating the Offer to the Company's shareholders.
Subject to the requirements of applicable law, and except for such
steps as are necessary to disseminate the Offer Documents and any
other documents necessary to consummate the Transactions, Purchaser
shall hold in confidence the information contained in any such
labels, listings and files, shall use such information only for the
purpose of communicating the Offer and disseminating any other
documents necessary to consummate the Offer and the Share Exchange
and the other Transactions and, if this Agreement shall be
terminated, shall, upon request, deliver to the Company all copies
of such information then in its possession.
4. Share Exchange Proposal.
(a) Contemporaneous with the execution of this Agreement, the Company
shall enter into, and cause the Delaware Company to enter into, the
Agreement and Plan of Share Exchange in substantially the form
annexed hereto as Exhibit B.
(b) The Company shall, as soon as practicable following the date of this
Agreement, give notice of, convene and hold a meeting of its
shareholders (the "Shareholders' Meeting") for the purpose of
seeking the approval of the Company's shareholders of the Agreement
and Plan of Share Exchange (the "Company Shareholder Approval"). The
Company shall, through the Special Committee, recommend to its
shareholders that they approve the Agreement and Plan of Share
Exchange. Without limiting the generality of the foregoing, the
Company agrees that its obligations pursuant to the first sentence
of this Section 4(b) shall not be affected by the commencement,
public proposal, public disclosure or communication to the Company
of any Takeover Proposal.
(c) The Company shall, as soon as practicable following the execution of
this Agreement, prepare and file with the SEC proxy materials with
respect to the Shareholders' Meeting (the "Proxy Materials") or such
other filings as may be required to be filed with the SEC by
applicable law (the "Other SEC Filings"), and the Company shall use
its best efforts to respond as promptly as practicable to any
comments of the SEC with respect thereto. The Company shall notify
Purchaser promptly of the receipt of any comments from the SEC or
its staff and of any request by the SEC or its staff for amendments
or supplements to the Proxy Materials or Other SEC Filings or for
any additional information and shall supply Purchaser with copies of
all correspondence between the Company or any of its
representatives, on the one hand, and the SEC or its staff, on the
other hand, with respect to the Proxy Materials or Other SEC
Filings. If at any time prior to the receipt of the approval of the
Agreement and Plan of Share Exchange by the Company's shareholders,
there shall occur any event that should be set forth in an
10
amendment or supplement to the Proxy Materials or Other SEC Filings,
the Company shall promptly prepare and mail to its shareholders such
an amendment or supplement. The Company shall not mail any Proxy
Statement or Other SEC Filings, or any amendment or supplement
thereto, to which Purchaser reasonably objects.
(d) In the event that Company Shareholder Approval is obtained and
Purchaser consummates the Offer, the Company shall as soon as
reasonably practicable (but in no event more than two (2) Business
Days) after the consummation of the Offer take such steps as may be
necessary to complete the Share Exchange.
(e) In the event that Company Shareholder Approval is obtained but this
Agreement shall have been terminated prior to the consummation of
the Offer, the Company's Board of Directors shall determine by
resolution within thirty (30) days after the termination of this
Agreement whether to complete the Share Exchange or terminate the
Agreement and Plan of Share Exchange.
5. Representations of Company. The Company hereby represents and warrants to
Purchaser that:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of New Jersey. The
Delaware Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
(b) The Company has all requisite corporate power and authority to
execute and deliver this Agreement and, subject to the approval of
its shareholders with respect to the Share Exchange, to consummate
the Transactions. The execution and delivery by the Company of this
Agreement and the consummation by the Company of the Transactions
have been duly authorized by all necessary corporate action on the
part of the Company, subject, in the case of the Share Exchange, to
receipt of the approval of the Company's shareholders.
(c) The Company has duly executed and delivered this Agreement to
Purchaser and this Agreement constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its
terms, except to the extent that enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws of general applicability relating to
or affecting the enforcement of creditors' rights and by the effect
of the principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(d) The Company Board, at a meeting duly called and held, and upon
recommendation of the Special Committee, adopted resolutions (i)
approving this Agreement, the Offer, the Share Exchange and the
other Transactions, (ii) determining that the terms of the Offer and
the Merger are fair, from a financial point of view, to the Company
and its shareholders and that the Share Exchange and Merger are
advisable and (iii) recommending that the shareholders of the
Company accept the Offer and tender their shares of Common Stock
11
pursuant to the Offer. No further corporate action is required by
the Company Board in order for the Company to approve this Agreement
or the Transactions contemplated hereby. The Company has been
advised by each of the members of the Special Committee that as of
the date of this Agreement, each such person intends to tender all
shares of Company Common Stock owned by such person pursuant to the
Offer.
(e) The Company has received from each member of the Special Committee
written resignations from their respective positions as directors of
the Company and of the Delaware Corporation, with each resignation
conditioned upon and to take effect only upon the occurrence of
consummation of the Offer under circumstances in which the Minimum
Tender Condition has been met and not waived.
6. Representations of Purchaser. Purchaser hereby represents and warrants to
the Company that:
(a) Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) Purchaser has all requisite corporate power and authority to execute
and deliver this Agreement and to consummate the Offer and the other
Transactions to which it is a party. The execution and delivery by
Purchaser of this Agreement and the consummation by Purchaser of the
Transactions to which Purchaser is a party have been duly authorized
by all necessary corporate actions on the part of Purchaser.
(c) Purchaser has duly executed and delivered this Agreement and this
Agreement constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except to the
extent that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar
laws of general applicability relating to or affecting the
enforcement of creditors' rights and by the effect of the principles
of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
(d) Set forth on Exhibit C hereto is a list of the officers and
directors of Purchaser and the identity of all shareholders of
Purchaser. Except for shares of capital stock of Purchaser owned by
the shareholders identified on Exhibit C and options contemplated to
be issued to certain shareholders of Purchaser, there are
outstanding (i) no shares of capital stock or other voting
securities of Purchaser, (ii) no securities of Purchaser convertible
into or exchangeable for capital stock or other voting securities of
Purchaser and (iii) no options, warrants or other rights to acquire
from Purchaser, and no obligations of Purchaser to issue, any
capital stock, voting securities or securities convertible into or
exchangeable for capital stock or other voting securities of
Purchaser, except pursuant to the Exchange Agreement dated as of
March 2, 2006 (the "Exchange Agreement") by and among Purchaser and
each of Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xx.,
Xxxxxx X. Xxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxxx Xxxxxxx, Xxxxxx Saker
Xxxxxx, Xxxxxxx Xxxxx Xxxxx, the Saker Family Partnership, L.P. and
the Xxxxxxx Xxxxx
12
Saker Trust, f/b/o Xxxxxxx Xxxxx Xxxxx (each a "Member of the
Purchaser Group"), which has previously been delivered to counsel
for the Special Committee.
(e) Except for its organizational activities and activities related to
the negotiation, delivery and consummation of this Agreement,
including activities related to the GMAC Letter and the Financing
Condition, Purchaser has not engaged in any substantive business
activities, incurred any liabilities or made any commitments other
than in connection with the transactions contemplated by this
Agreement.
(f) Purchaser has received, and delivered to counsel for the Special
Committee copies of, binding commitments from its shareholders (the
"Stock Commitments") to contribute to Purchaser at or before the
closing of the Offer sufficient shares of Company Common Stock such
that, before any Shares are accepted in the Offer Purchaser will own
no less than 424,890 shares of Company Common Stock, which shall
constitute no less than 43% of the then outstanding shares of
Company Common Stock. Such shareholders own sufficient shares of
Company Common Stock free and clear of liens to meet the Stock
Commitments, except, in the case of Shares owned by Xxxxxxx Xxxxx,
for certain liens securing margin loans which will be released
immediately prior to the consummation of the Offer through the
repayment of such margin loans in full with proceeds of a loan made
by Purchaser.
7. Reasonable Efforts. Upon the terms and subject to the conditions set forth
in this Agreement, each of the parties hereto shall use all reasonable
efforts to take, or cause to be taken, all reasonable actions, and to do,
or cause to be done, and to assist and cooperate with the other parties in
doing, all things reasonably necessary, proper or advisable to consummate
and make effective, in the most expeditious manner practicable, the Offer
and the Share Exchange, including (i) the obtaining of all necessary
actions or nonactions, waivers, consents and approvals from Governmental
Entities and the making of all necessary registrations and filings
(including filings with Governmental Entities, if any) and the taking of
all reasonable steps as may be necessary to obtain an approval or waiver
from, or to avoid an action or proceeding by, any Governmental Entity,
(ii) the obtaining of all necessary consents, approvals or waivers from
third parties, including, without limitation, the consent of Wakefern Food
Corporation to the Transactions, (iii) the defending of any lawsuits or
other legal proceedings, whether judicial or administrative, challenging
this Agreement or the consummation of the Transactions, including, when
reasonable, seeking to have any judgment, order, temporary restraining
order, temporary or permanent injunction, ruling or decree or other court
action (an "Order") entered by any Governmental Entity vacated or reversed
and (iv) the execution and delivery of any additional instruments
necessary to consummate the Transactions and to fully carry out the
purposes of this Agreement. Nothing in this Agreement shall be deemed to
require any party to waive any substantial rights or agree to any
substantial limitation on its operations or to dispose of any significant
asset or collection of assets.
8. Termination. This Agreement may be terminated at any time prior to the
consummation of the Offer, whether before or after receipt of Company
Stockholder Approval:
(a) by mutual written consent of Purchaser and the Company;
13
(b) by the Company:
(i) if Purchaser fails to accept for payment and pay for all
Shares validly tendered and not withdrawn pursuant to the
Offer once Purchaser becomes obligated to purchase such Shares
pursuant to, and on the terms and subject to the conditions of
the Offer and this Agreement, which failure cannot be or has
not been cured within ten (10) days after the giving of
written notice to Purchaser of such failure, and such failure
does not result from one or more of the following causes: (A)
the Company's failure to fulfill any of its obligations under
this Agreement or (B) facts or circumstances that constitute a
breach of any representation or warranty under this Agreement
by the Company; or
(ii) if the Purchaser shall not have provided documentation to the
Special Committee on or before March 17, 2006 which provides
reasonable assurance that (x) at least 466,712 Shares have
been or shall be contributed to Purchaser as required by the
terms of the Exchange Agreement and (y) any Shares owned by
Members of the Purchaser Group that are not contributed to the
Purchaser pursuant to the Exchange Agreement will be tendered
to Purchaser pursuant to the Offer.
(iii) for any other reason.
(c) by Purchaser:
(i) following the Outside Date if the Offer has not been
consummated, provided, however, that the right to terminate
this Agreement pursuant to this clause (i) shall not be
available to Purchaser if (A) the failure to consummate the
Offer was the result of a willful and material breach of this
Agreement by Purchaser or (B) the Financing Condition has not
been met by the Outside Date; or
(ii) if any Governmental Entity issues an Order permanently
enjoining, restraining or otherwise prohibiting the Share
Exchange or the acceptance for payment of, or payment for,
shares of Company Common Stock pursuant to the Offer and such
Order shall have become final and nonappealable; or
(iii) if as the result of the failure of any of the Tender Offer
Conditions other than the Financing Condition, the Offer shall
have terminated or expired in accordance with its terms
without Purchaser having accepted shares of Company Common
Stock for payment pursuant to the Offer; provided, however,
that the right to terminate this Agreement pursuant to this
clause (iii) shall not be available to Purchaser if its
failure to fulfill any of its obligations under this Agreement
results in the failure of any such condition or if the failure
of such condition results from facts or circumstances that
constitute a willful breach of any representation or warranty
under this Agreement by Purchaser; or
14
(iv) if the Company breaches or fails to perform in any material
respect any of its representations, warranties, or covenants
contained in this Agreement which breach or failure to perform
(A) would give rise to the failure of a condition set forth in
Exhibit A, and (B) cannot be or has not been cured within ten
(10) days after the giving of written notice to the Company of
such breach; provided, however, that the right to terminate
this Agreement pursuant to this clause (iv) shall not be
available to Purchaser if Purchaser is in material breach of
any representation, warranty or covenant contained in this
Agreement; or
(v) if prior to the first acceptance of shares of Company Common
Stock for payment pursuant to the Offer the Company Board or
an Independent Committee withdraws or modifies in a manner
adverse to Purchaser, or publicly proposes to withdraw or
modify in a manner adverse to Purchaser, its approval or
recommendation of this Agreement, the Offer or the Share
Exchange, fails to recommend to the Company's shareholders
that they accept the Offer and give the Company Shareholder
Approval or publicly approves or recommends, or publicly
proposes to approve or recommend, any Company Takeover
Proposal; or
(vi) if the Company Board or an Independent Committee authorized to
evaluate a tender offer proposed by a party other than
Purchaser, expresses no opinion, remains neutral or is unable
to take a position with respect to such tender offer; or
(vii) if a Material Adverse Effect has occurred and is continuing;
(viii) if there shall have been instituted or pending any
shareholder derivative litigation or shareholder class action
litigation against the Company or the Purchaser or any of
their respective subsidiaries, affiliates, officers or
directors or if there shall be pending any action, suit or
proceeding against the Company or the Purchaser or any of
their respective subsidiaries, affiliates, officers or
directors challenging or seeking damages or other relief in
connection with the acquisition of Shares by Purchaser or any
of the transactions related thereto or seeking to restrain or
prohibit the making or consummation of the Offer or Share
Exchange;
(ix) if the Financing Condition is not met by the Outside Date and
the failure of such condition does not result from either (A)
the existence of a material adverse change in the business,
operations, assets, properties, liabilities, profits,
prospects or financial position of the Company, (B) the
Company's failure to fulfill any of its obligations under this
Agreement or from facts or circumstances that constitute a
breach of any representation or warranty under this Agreement
by the Company, (C) the Company's failure to have received and
accepted a fairness opinion from a financial advisor
reasonably acceptable to GMAC endorsing the fairness to the
Company's shareholders of the terms of the Offer, or (D) the
failure to satisfy the Minimum Tender Condition; or
15
(x) if the Financing Condition is not met by the Outside Date and
the failure of such condition results from one or more of the
reasons set forth in clauses (A) thru (D) of Section 8(c)(ix)
above.
9. Effect of Termination. In the event of termination of this Agreement by
either the Company or Purchaser as provided in Section 8, this Agreement
shall forthwith become void and have no effect. Such termination shall be
without any liability or obligation on the part of Purchaser or the
Company, other than this Section 9, Section 12, Section 13 and Sections 15
through 24, which provisions shall survive such termination, and except to
the extent that such termination results from the willful and material
breach by a party of any representation, warranty or covenant set forth in
this Agreement.
10. Extension; Waiver. The parties may at any time (i) extend the time for the
performance of any of the obligations or other acts of the other parties,
(ii) waive any inaccuracies in the representations and warranties
contained in this Agreement or in any document delivered pursuant to this
Agreement or (iii) waive compliance with any of the agreements or
conditions contained in this Agreement. Any agreement on the part of a
party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure of
any party to this Agreement to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of such rights.
11. Procedure for Termination, Amendment, Extension or Waiver. In order to be
effective, any action or agreement to terminate, amend, extend or waive
this Agreement or any provisions hereof shall require, in the case of
Purchaser, action by its Board of Directors or the duly authorized
designee of its Board of Directors, and in the case of the Company, action
by the Company Board subsequent to and in accordance with a recommendation
by the Special Committee in favor of such action. All corporate action
taken to implement the Special Committee's recommendation of an action or
agreement to terminate, amend, extend or waive this Agreement or any
provisions hereof (including without limitation the subsequent approval or
ratification of such action or agreement by the Company Board or the
execution and delivery of documentation evidencing such action or
agreement by an officer or officers of the Company) shall be deemed to
have occurred at the time the Special Committee notified Purchaser that
the Special Committee was recommending such action.
12. Reimbursement of Ticking Fee.
(a) In the event that this Agreement is terminated pursuant to Section
8(b) or 8(c) for any reason (other than a termination by the Company
pursuant to Section 8(b)(i) or 8(b)(ii) or by the Purchaser pursuant
to Section 8(c)(ix)) the Company will reimburse Purchaser for the
cost of (a) any "ticking fee" payable to GMAC Commercial Finance LLC
pursuant to the GMAC Letter and (b) all out-of-pocket fees and
expenses payable by Purchaser to its legal counsel and its outside
financial advisor for the period from December 1, 2004 through and
including the date of termination (collectively with the "ticking
fee," the "Out-of-Pocket Expenses"); provided, that all amounts
previously paid by the Company pursuant to the letter agreement
between the parties hereto dated February 6, 2006 and countersigned
as of February 10, 2006 (the "February Letter Agreement") shall
16
be credited against amounts otherwise owing under this Section
12(a); and provided, further, that all amounts paid by or credited
to the Company pursuant to this Section 12(a) shall be credited
against any obligation that the Company may have to pay the
Termination Fee pursuant to Section 13 below. If this Agreement is
terminated by mutual consent pursuant to Section 8(a) for any
reason, the parties shall, by mutual consent, determine whether and
to what extent the Company will reimburse Purchaser for its
Out-of-Pocket Expenses.
(b) In the event that this Agreement is terminated by Purchaser pursuant
to Section 8(c)(viii), the Company will reimburse Purchaser for the
Applicable Percentage of all Out-of-Pocket Expenses; provided that
all amounts previously paid by the Company pursuant to the February
Letter Agreement shall be credited against amounts otherwise owing
under this Section 12(b); and provided further that all amounts paid
by or credited to the Company pursuant to this Section 12(b) shall
be credited against any obligation that the Company may have to pay
the Termination Fee pursuant to Section 13 below. The "Applicable
Percentage" shall be one hundred percent (100%) if the event giving
rise to the termination pursuant to Section 8(c)(viii) is one which
had, or at the time of termination was reasonably likely to result
in, a Material Adverse Effect. The "Applicable Percentage" shall be
eighty percent (80%) if the event giving rise to the termination
pursuant to Section 8(c)(viii) is one which did not have, and at the
time of termination was not reasonably likely to result in, a
Material Adverse Effect; provided, however, that if the event giving
rise to the termination pursuant to Section 8(c)(viii) did not, and
at the time of termination was not reasonably likely to, have a
significant economic impact on Purchaser or on the ability of
Purchaser to consummate the Offer, then the "Applicable Percentage"
shall be zero.
13. Termination Fee. The Company shall pay to Purchaser a fee (the
"Termination Fee") of One Million Five Hundred Thousand Dollars
($1,500,000) if:
(a) this Agreement is terminated by the Company other than pursuant to
Section 8(b)(i) or Section 8(b)(ii); or
(b) this Agreement is terminated by Purchaser pursuant to Section
8(c)(iv), (v) or (vi).
14. Further Assurance. From time to time, at another party's request and
without additional consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
17
15. Notice. All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) If to Purchaser:
Saker Holdings Corp.
x/x Xxxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
(b) If to the Company:
Foodarama Supermarkets, Inc.
c/o Special Committee of the Board of Directors
c/o Pitney Xxxxxx LLP
000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
16. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible in
an acceptable manner to the end that transactions contemplated hereby are
fulfilled to the maximum extent possible.
18. Entire Agreement; No Third-Party Beneficiaries. This Agreement constitutes
the entire agreement among the parties hereto and supersedes all other
prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter of this Agreement, including
without limitation the February Letter Agreement, and this Agreement is
not intended to confer upon any person, other than the parties hereto, any
rights or remedies.
19. Assignment. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement may be assigned or delegated, in whole or
in part by any of the parties, other than by operation of law; provided,
however, that Purchaser may assign, in its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Purchaser, but no such assignment shall relieve Purchaser of its
obligations hereunder if such assignee does not perform such obligations.
18
20. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New Jersey, regardless of the
laws that might otherwise govern under applicable principles of conflicts
of laws thereof. Each of the parties hereto (i) hereby irrevocably and
unconditionally consents to submit to the personal jurisdiction of the
courts of the State of New Jersey and of the United States of America
located in the State of New Jersey in the event any dispute arises out of
this Agreement or any of the transactions contemplated by this Agreement,
(ii) shall not object to or attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, and
(iii) shall not bring any action relating to this Agreement or any of the
transactions contemplated by this Agreement in any other court.
21. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
22. Amendment. This Agreement may not be amended except by an instrument in
writing signed by the parties hereto.
23. Waiver. Any party hereto may (i) extend the time for the performance of
any of the obligations or other acts of the other party hereto, (ii) waive
any inaccuracies in the representations and warranties of the other party
hereto contained herein or in any document delivered pursuant hereto and
(iii) waive compliance by the other party hereto with any of their
agreements or conditions contained herein. Any agreement on the part of a
party hereto to any such extension or waiver shall be valid only as
against such party and only if set forth in an instrument in writing
signed by such party. The failure of any party hereto to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of
those rights.
24. Counterparts. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same instrument and shall
become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
FOODARAMA SUPERMARKETS, INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President, Treasurer and
Chief Financial Officer
SAKER HOLDINGS CORP.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
20
EXHIBIT A
TENDER OFFER CONDITIONS
Notwithstanding any other term of the Offer or this Agreement, Purchaser
shall not be required to accept for payment or, subject to any applicable rules
and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act
(relating to Purchaser's obligation to pay for or return tendered shares of
Company Common Stock promptly after the termination or withdrawal of the Offer),
to pay for any shares of Company Common Stock tendered pursuant to the Offer if
(i) the Majority Tender Condition shall not have been met, (ii) the Minimum
Tender Condition shall not have been met, (iii) the Company's Shareholders shall
not have approved the Agreement and Plan of Share Exchange, (iv) the Financing
Condition shall not have been met, or (v) at any time prior to the expiration of
the Offer, any of the following events shall occur and be continuing and shall
not have resulted from the breach by Purchaser of any of its obligations under
this Agreement:
(a) there shall be in effect any Order of any Governmental Entity of
competent jurisdiction: (i) which makes illegal, prevents, makes
materially more expensive (without taking into account any legal
fees or expenses incurred in connection with the Order or the
Offer), restrains or prohibits the Offer, the acceptance for payment
of, or payment for, any Shares by Purchaser or any affiliate of
Purchaser, or the consummation of the Share Exchange or Merger; (ii)
which prohibits the ownership or operation by Purchaser, the Company
or any of its subsidiaries of all or a material portion of the
business or assets of Purchaser, the Company or any of its
subsidiaries or which compels Purchaser, the Company or any of its
subsidiaries to dispose of or hold separate all or any material
portion of the business or assets of Purchaser, the Company or any
of its subsidiaries; (iii) which imposes material limitations on the
ability of Purchaser, or any affiliate of Purchaser to exercise full
rights of ownership of any Shares, including, without limitation,
the right to vote any Shares acquired by Purchaser pursuant to the
Offer or otherwise on all matters presented to the Company's
shareholders, including, without limitation, the approval and
adoption of the Agreement and Plan of Share Exchange; (iv) which
requires divestiture by Purchaser or any affiliate of Purchaser of
any Shares; or (v) which otherwise has a Material Adverse Effect;
(b) there shall be in effect any law, statute, rule, regulation,
judgment, order or legislation applicable to (i) Purchaser, the
Company or any subsidiary or affiliate of Purchaser or the Company
or (ii) any transaction contemplated by the Agreement, which
results, directly or indirectly, in any of the consequences referred
to in clauses (i) through (v) of paragraph (a) above;
(c) there shall have occurred a Material Adverse Effect;
(d) the Company Board or the Special Committee shall have (i) withdrawn
or modified in a manner adverse to Purchaser, or publicly proposed
to withdraw or modify in a manner adverse to Purchaser, its approval
or recommendation of this Agreement, the Offer or the Share
Exchange, (ii) failed to recommend to the Company's shareholders
that they accept the Offer, (iii) approved or
21
recommended, or publicly proposed to approve or recommend, any
Takeover Proposal, (iv) caused the Company to enter into any
agreement relating to a Takeover Proposal or (v) resolved to do any
of the foregoing;
(e) any of the representations and warranties of the Company contained
in the Agreement shall not be true and correct except where the
failure to be so true and correct, individually or in the aggregate,
has not had and would not reasonably be expected to have, a Material
Adverse Effect, and such inaccuracy shall not have been cured;
(f) the Company shall have failed to perform in any material respect any
obligation or to comply in any material respect with any agreement
or covenant of the Company to be performed or complied with by it
under this Agreement, which failure to perform or comply cannot be
or has not been cured within ten days after the giving of written
notice to the Company of such breach;
(g) there shall have been instituted or pending any shareholder
derivative litigation or shareholder class action litigation against
the Company or the Purchaser or any of their respective
subsidiaries, affiliates, officers or directors or there shall be
pending any action, suit or proceeding against the Company or the
Purchaser or any of their respective subsidiaries, affiliates,
officers or directors challenging or seeking damages or other relief
in connection with the acquisition of Shares or any of the
transactions related thereto by Purchaser or seeking to restrain or
prohibit the making or consummation of the Offer or the Share
Exchange;
(h) the Company shall not have received the consent of Wakefern Food
Corporation to the Transactions;
(i) this Agreement shall have been terminated in accordance with its
terms.
which, in the sole and good faith judgment of Purchaser, makes it inadvisable to
proceed with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of Purchaser and may be
asserted by Purchaser regardless of the circumstances giving rise to such
condition or may be waived by Purchaser in whole or in part at any time and from
time to time in its sole discretion (subject to the terms of this Agreement).
The failure by Purchaser or any other affiliate of Purchaser at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right, the waiver of any such right with respect to particular facts and
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances and each such right shall be deemed an ongoing right that may be
asserted at any time and from time to time.
22
Exhibit B
AGREEMENT AND PLAN OF SHARE EXCHANGE
This AGREEMENT AND PLAN OF SHARE EXCHANGE (the "Share Exchange Agreement")
is entered into as of March 2, 2006, by and between Foodarama Supermarkets,
Inc., a New Jersey corporation ("Foodarama"), and FSM-Delaware, Inc., a Delaware
corporation ("FSM-Delaware").
RECITALS
WHEREAS, FSM-Delaware is a wholly owned subsidiary of Foodarama;
WHEREAS, Foodarama and FSM-Delaware wish to enter into a share exchange
transaction (the "Share Exchange") under Section 14A:10-13 of the New Jersey
Business Corporation Act (the "BCA") pursuant to which each share of Foodarama
common stock, $1.00 par value per share (each a "Foodarama Share"), issued and
outstanding immediately prior to the completion of the Share Exchange will be
exchanged for one share of FSM-Delaware common stock, $.001 par value per share
(each an "FSM-Delaware Share");
WHEREAS, Saker Holdings Corp. (the "Purchaser") has submitted a proposal
to the Foodarama Board of Directors which contemplates that the Purchaser will
make a tender offer (the "Offer") for Shares not owned by Purchaser and its
shareholders at a price of $53 per Share.
NOW, THEREFORE, in consideration of the mutual promises, representations
and covenants contained herein, the parties hereto agree as follows:
1. The Share Exchange.
1.1. Exchange of Foodarama Shares. Subject to the terms and conditions of
this Agreement, at the Effective Time (as such term is defined in
Section 1.3 below), each Foodarama Share issued and outstanding
immediately before the Effective Time shall, by virtue of the Share
Exchange and without any action on the part of the holders thereof,
be exchanged for and converted automatically into one FSM-Delaware
Share, and, immediately following the Effective Time, all of the
Foodarama Shares issued and outstanding immediately before the
Effective Time shall automatically be the property of FSM-Delaware
such that Foodarama will be a direct wholly owned subsidiary of
FSM-Delaware.
1.2. Cancellation of FSM-Delaware Shares. Subject to the terms and
conditions of this Agreement, at the Effective Time, each
FSM-Delaware Share owned by Foodarama shall be cancelled and
extinguished without consideration.
1.3. Effective Time. Promptly following fulfillment of all conditions to
the Share Exchange set forth in Section 2 hereof, Foodarama shall
cause a certificate of share exchange reflecting the terms hereof
and in such form as is required by the relevant provisions of the
BCA (the "Certificate of Share Exchange") to be prepared, executed
and filed with the Department of Treasury, Division of Revenue of
the State of New Jersey. The Share Exchange shall become effective
23
at the time of such filing (the "Effective Time") unless a different
time is specified in the Certificate of Share Exchange, in which
case the Effective Time shall be the time specified in the
Certificate of Share Exchange.
1.4. Effects of Share Exchange. The Share Exchange shall have the effects
set forth in Section 14A:10-13(7) of the BCA.
1.5. Certificates. Each certificate that, before the Effective Time,
represented one or more Foodarama Shares shall represent, from and
after the Effective Time, an equal number of FSM-Delaware Shares.
The FSM-Delaware Shares that each former holder of Foodarama Shares
shall be entitled to receive pursuant to the Share Exchange shall be
deemed to have been issued at the Effective Time. FSM-Delaware shall
have no obligation to issue certificates representing FSM-Delaware
Shares unless certificates representing Foodarama Shares are duly
presented to it for exchange with a duly executed letter of
transmittal in a form satisfactory to FSM-Delaware and such other
documents as FSM-Delaware may reasonably require.
2. Conditions to Share Exchange. The obligation of each party hereto to
effect the Share Exchange shall be subject to the fulfillment at or prior
to the Effective Time of the following conditions:
2.1. The Foodarama shareholders shall have duly approved the Share
Exchange in accordance with the BCA;
2.2. The Offer shall have been consummated or, if the Offer shall not
have been previously consummated, the Foodarama Board of Directors
shall have confirmed, subsequent to such shareholder approval, that
consummation of the Share Exchange is advisable; and
2.3. No injunction, restraining order or other order issued by a court of
competent jurisdiction that prohibits the consummation of the Share
Exchange shall be in effect, and no governmental action or
proceeding shall have been commenced or threatened by any United
States federal, state, local or any foreign government, governmental
regulatory or administrative authority, board, bureau, department,
instrumentality, agency, commission or quasi-governmental unit, or
any court, tribunal or judicial or arbitral body seeking any
injunction, restraining order or other order that seeks to prohibit,
restrain, invalidate or set aside the consummation of the Share
Exchange.
3. Other Matters.
3.1. Further Assurances. The parties hereto agree that they will cause to
be done any and all acts and things, and cause to be executed,
delivered, filed, and recorded any and all instruments, papers, and
documents prescribed by the laws of the State of New Jersey and the
State of Delaware, which are or become necessary, proper, or
convenient to effectuate the Share Exchange or to carry out or put
into effect any of the provisions of this Share Exchange Agreement.
24
3.2. Governing Law. This Share Exchange Agreement shall be governed by,
and construed and interpreted 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.
3.3. Termination. This Share Exchange Agreement may be terminated for any
reason at any time before the filing of the Certificate of Share
Exchange with the Department of Treasury, Division of Revenue of the
State of New Jersey by resolution of the Board of Directors of
Foodarama.
3.4. Amendment. This Share Exchange Agreement may, to the extent
permitted by law, be amended at any time, whether before or after
shareholder approval, by action taken by the Board of Directors of
Foodarama.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
and Plan of Share Exchange as of the day first above written.
Foodarama Supermarkets, Inc.
By:
--------------------------------
Name:
Title:
FSM-Delaware, Inc.
By:
--------------------------------
Name:
Title:
25
EXHIBIT C
Officers and Directors of Saker Holdings Corp. (the "Company")
Name Position Held
------------------------------ -----------------------------------------------
Xxxxxx X. Xxxxx ............. Chairman of the Board of Directors of the
Company
Xxxxxxx X. Xxxxx ............ President and Chief Executive Officer of the
Company and Director
Xxxxxx X. Xxxxx, Xx.......... Executive Vice President - Marketing and
Advertising and Director
Xxxxxx X. Xxxxx.............. Senior Vice President - Operations and Director
Xxxxxx Xxxxx Xxxxxxx......... Director
Shareholders of Saker Holdings Corp.
Name of Shareholder Number of Shares Owned
------------------- ----------------------
Xxxxxxx X. Xxxxx 1
Options to be Issued
Number of Shares
Name of Optionee Subject to Option
---------------- -----------------
Xxxxxx X. Xxxxx 40,000
Xxxxxxx X. Xxxxx 50,000
26
