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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-9
(Amendment No. 5)
Solicitation/Recommendation Statement Pursuant to
Section 14(d)(4) of the Securities Exchange Act of 1934
SUPERMARKETS GENERAL HOLDINGS
CORPORATION
(Name of Subject Company)
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SUPERMARKETS GENERAL HOLDINGS
CORPORATION
(Name of Person Filing Statement)
$3.52 Cumulative Exchangeable Redeemable Preferred Stock,
par value $.01 per share
(Title of Class of Securities)
868446204
(CUSIP Number of Class of Securities)
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Marc A. Strassler, Esq.
Senior Vice President, Secretary and General Counsel
Supermarkets General Holdings Corporation
200 Milik Street
Carteret, New Jersey 07008-1194
(732) 499-3000
(Name, Address and Telephone Number of Person authorized to
Receive Notices and Communications on Behalf of
the Person Filing Statement)
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With a copy to:
Spencer D. Klein, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
212-848-4000
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<PAGE>
This Amendment No. 5 amends and supplements the Solicitation/
Recommendation Statement on Schedule 14D-9, dated March 15, 1999 (as further
amended and supplemented prior to the date hereto, the "Schedule 14D-9") of
Supermarkets General Holdings Corporation, a Delaware corporation (the
"Company") with respect to the Offer (as described herein). Capitalized terms
used but not defined herein have the meanings ascribed to such terms in the
Schedule 14D-9.
Item 2. TENDER OFFER OF THE BIDDER
Item 2 is hereby amended and restated in its entirety as follows:
This Statement relates to a tender offer disclosed in the Tender Offer
Statement on Schedule 14D-1 dated March 15, 1999 (as subsequently amended, the
"Schedule 14D-1") filed by Koninklijke Ahold N.V., a company organized under the
laws of The Netherlands ("Parent"), Croesus, Inc, a Delaware corporation and an
indirect wholly owned subsidiary of Parent ("Croesus"), Ahold U.S.A., Inc., a
Delaware corporation and an indirect wholly owned subsidiary of Parent ("Ahold
U.S.A."), and Ahold Acquisition, Inc., a Delaware corporation and an indirect
wholly owned subsidiary of Parent (the "Purchaser"), to purchase all of the
issued and outstanding shares of $3.52 Cumulative Exchangeable Redeemable
Preferred Stock, par value $0.01 per share, of the Company (the "Shares") at a
price of $38.25 per Share (the "Original Offer Price"), net to the seller in
cash, without interest thereon (the "Original Offer"), which offer, as
subsequently amended, provides for the purchase of all the Shares at a price of
$39.85 per share, net to the seller in cash (the "Offer Price"), upon the terms
and subject to the conditions set forth in the Offer to Purchase dated March 15,
1999 (the "Offer to Purchase") and the related Letter of Transmittal (which,
together with the Offer to Purchase and all amendments and supplements hereto,
constitutes the "Offer"). The Offer to Purchase and Letter of Transmittal are
filed herewith as Exhibit (a)(1) and Exhibit (a)(2), respectively, and are
incorporated by reference.
The Offer is an integral part of the transactions contemplated by, and
is being made pursuant to, an Agreement and Plan of Merger, dated as of March 9,
1999, among Parent, the Purchaser and SMG-II (the "Original SMG-II Merger
Agreement"), as amended on August 24, 1999 (the Original SMG-II Merger
Agreement, as amended, being referred to herein as the "SMG-II Merger
Agreement") pursuant to which Parent will be acquiring all of the issued and
outstanding shares of the capital stock of SMG-II through the merger of the
Purchaser with and into SMG-II (the "SMG-II Merger"), subject to the terms and
conditions contained in the SMG-II Merger Agreement for aggregate consideration
of $45,950,492.25. Pursuant to the SMG-II Merger Agreement, the Offer is subject
to certain conditions, including the condition that there be validly tendered
and not withdrawn prior to the expiration of the Offer a number of Shares which,
together with Shares previously acquired by Parent, any direct or indirect
subsidiary of Parent (including the Purchaser), the Company, or any direct or
indirect subsidiary of the Company, represent at least 662/3% of the Shares on a
fully diluted basis (the "Minimum Condition"). The Offer is also conditioned
upon, among other things, the expiration or termination of any applicable
waiting period under the antitrust laws and the receipt by Parent of an
irrevocable letter
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2
from SMG-II stating that all of the conditions to the obligations of SMG-II to
effect the SMG-II Merger described below pursuant to the SMG-II Merger Agreement
have been satisfied or waived.
The SMG-II Merger Agreement provides that, promptly upon consummation
of the SMG-II Merger, Parent will cause the Company to be merged with and into
SMG-II (the "Company Merger"), pursuant to a Merger Agreement (the "Company
Merger Agreement") to be entered into at such time between SMG-II and the
Company in the form attached as an exhibit to the SMG-II Merger Agreement. At
the effective time of the Company Merger, each of the Shares (other than Shares
held by any subsidiary of the Company or in the treasury of the Company, or
held, directly or indirectly, by Parent or any direct or indirect subsidiary of
Parent (including the Shares acquired by the Purchaser pursuant to the Offer),
which Shares will be canceled, and other than Shares, if any, held by
stockholders who perfect their appraisal rights under the Delaware General
Corporation Law) will be converted into the right to receive an amount in cash
equal to $39.85. A complete copy of the SMG-II Merger Agreement (including the
form of Company Merger Agreement appended as Exhibit 2 thereto) is filed
herewith as Exhibit (a)(3) and is incorporated herein by reference. A complete
copy of the amendment dated August 24, 1999, to the Original SMG-II Merger
Agreement (the "SMG-II Merger Agreement Amendment") is filed herewith as Exhibit
(a)(14) and is incorporated herein by reference.
The SMG-II Merger Agreement provides that, among other things, in the
event all of the conditions to the consummation of the SMG-II Merger (other than
the Minimum Condition and certain related conditions) have been satisfied or
waived, but the Minimum Condition or certain related conditions have not been
satisfied or waived, SMG-II is obligated, pursuant to the terms and conditions
of a Stock Purchase Agreement dated as of March 9, 1999, as amended on August
24, 1999 (the "Alternative Stock Purchase Agreement"), by and among SMG-II, PTK
Holdings, Inc., a Delaware corporation ("PTK") and a wholly owned subsidiary of
the Company, Parent and the Purchaser to cause PTK to sell all of the issued and
outstanding shares of the capital stock (the "Pathmark Stock") of Pathmark
Stores, Inc., a Delaware corporation and a wholly owned subsidiary of PTK
("Pathmark") for a purchase price, payable in cash, equal to $242,800,000. In
such event, the only material asset of the Company would be its ownership of all
of the issued and outstanding shares of the capital stock of PTK, the only
material asset of which in turn would be the net after tax proceeds from the
sale of the Pathmark Stock to the Purchaser pursuant to the Alternative Stock
Purchase Agreement. A complete copy of the Alternative Stock Purchase Agreement
is filed herewith as Exhibit (a)(4) and is incorporated herein by reference. A
complete copy of the amendment dated August 24, 1999, to the Stock Purchase
Agreement, dated as of March 9, 1999, among SMG-II, PTK, Parent and the
Purchaser (the "Alternative Stock Purchase Amendment") is filed herewith as
Exhibit (a)(15) and is incorporated herein by reference.
Concurrent with the execution of the Original SMG-II Merger Agreement,
as required by Parent and the Purchaser, the MLCP Investors (as defined below),
the Equitable Investors (as
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3
defined below) and James L. Donald (collectively, the "SMG-II Stockholders"),
entered into a stockholders agreement, dated March 9, 1999 (the "Stockholders
Agreement") with Parent and the Purchaser. Pursuant to the Stockholders
Agreement, each of SMG-II Stockholders has (i) agreed to vote the shares of the
capital stock of SMG-II owned by it in favor of the SMG-II Merger and (ii)
granted the Purchaser an option to purchase the shares of the capital stock of
SMG-II owned by it under certain circumstances. A complete copy of the
Stockholders Agreement is filed herewith as Exhibit (a)(5) and is incorporated
herein by reference.
As set forth in the Offer to Purchase, the principal executive offices
of Parent are located at Albert Heijinweg 1, 1507 EH Zaandam, P. O. Box 33, 1500
EA Zaandam, The Netherlands, the principal executive offices of Ahold U.S.A. are
located at One Atlanta Plaza, East Paces Ferry Road, Suite 2575, Atlanta,
Georgia 30326, and the principal executive offices of Croesus and the Purchaser
are located at 913 N. Market St., Suite 209, Wilmington, Delaware 19801.
Item 3. IDENTITY AND BACKGROUND
Paragraph 5 of Item 3(b)(2) is amended and restated in its entirety to
read as follows:
"In the SMG-II Merger, on the date and at the time when the SMG-II
Merger shall become effective (the "Effective Time"), each outstanding share of
Class A Common Stock, par value $0.01 per share (the "Class A Common Stock"), of
SMG-II, each issued and outstanding share of Class B Common Stock, par value
$0.01 per share (the "Class B Common Stock"), of SMG-II, each issued and
outstanding share of Series A Cumulative Convertible Preferred Stock, par value
$0.01 per share (the "Series A Preferred Stock"), of SMG-II, each issued and
outstanding share of Series B Cumulative Convertible Preferred Stock, par value
$0.01 per share (the "Series B Preferred Stock"), of SMG-II, and each issued and
outstanding share of Series C Cumulative Convertible Preferred Stock, par value
$0.01 per share (the "Series C Preferred Stock" and, together with the Class A
Common Stock, the Class B Common Stock, the Series A Preferred Stock and the
Series B Preferred Stock, collectively, the "SMG-II Stock") (other than shares
of SMG-II Stock held by any subsidiary of SMG-II or in the treasury of SMG-II,
or by Parent, the Purchaser or any other subsidiary of Parent, which shares of
SMG-II Stock will be cancelled, and other shares of SMG-II Stock, if any, held
by stockholders who perfect their appraisal rights under the DGCL) will by
virtue of the SMG-II Merger Agreement and without any action by the holder
thereof, be converted into the right to receive, in the case of Class A Common
Stock and Class B Common Stock, $4.38 in cash and in the case of Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock, $93.46
in cash (such amount, with respect to each such share of SMG-II Stock, the
"Applicable Merger Consideration") payable to the holder thereof, without
interest thereon."
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4
Paragraph 10 of Item 3(b)(2) is amended and restated in its entirety to
read as follows:
"SMG-II Meeting. Pursuant to the SMG-II Merger Agreement, not later
than September 3, 1999, SMG-II, acting through the board of directors of SMG-II,
shall, in accordance with applicable law, (i) call a special meeting of its
stockholders (the "Special Meeting") for the purpose of voting upon the SMG-II
Merger Agreement and the SMG-II Merger or (ii) use its reasonable efforts to
solicit in writing the consent to the SMG-II Merger Agreement and the SMG-II
Merger from all holders of the SMG-II Stock. SMG-II has agreed that it shall
include in its proxy solicitation or, as the case may be, consent solicitation
the recommendation of the board of directors of SMG-II that stockholders of
SMG-II approve and adopt the SMG-II Merger Agreement and approve the SMG-II
Merger and take all other lawful action necessary and advisable to secure the
vote or, as the case may be, consent of holders of 66 2/3% of SMG-II Stock
(voting as one class, with each share having one vote) in favor of the SMG-II
Merger and the SMG-II Merger Agreement."
Paragraph 12 of Item 3(b)(2) is amended and restated in its entirety to
read as follows:
"Notwithstanding anything else provided in the foregoing paragraph to
the contrary, the following are permitted under the SMG-II Merger Agreement: (1)
the acquisition of direct or indirect interests in real property intended for
the operation of stores of Pathmark or any of its subsidiaries (other than
PRMC), the improvement of real property, the remodeling of stores of Pathmark or
any of its subsidiaries (other than PRMC) and the obtaining of financing
therefor in the ordinary course of business consistent with past practice, (2)
the negotiation and entering into by Pathmark or any of its subsidiaries (other
than PRMC) of amendments to existing leases for real property in the ordinary
course of business, (3) the negotiation in good faith and entering into new
collective bargaining agreements by Pathmark that replace agreements that have
expired or will expire pursuant to their terms within 90 days from the date of
the commencement of negotiations, (4) the marketing and sale of certain real
estate not used in the supermarket business by Pathmark or any of its
subsidiaries (other than PRMC), provided that no such sale (other than a sale
pursuant to a binding agreement to which Pathmark was a party on March 9, 1999)
shall be agreed to without the prior adequate consultation with Parent, (5)
entering into amendments to the Credit Agreement among Pathmark, various banks,
and The Chase Manhattan Bank, as Agent, dated as of June 30, 1997, as amended
and restated (the "Pathmark Credit Agreement"), to modify covenants as required
(other than modifications, except for a possible increase in the interest rate,
which will make any one or more covenants more restrictive) and (6) entering
into an agreement implementing the amendments to the First Amended and Restated
Supply Agreement dated January 29, 1998, by and between Pathmark and C&S
Wholesale Grocers, Inc. (the "Supply Agreement") agreed to in a memorandum of
understanding effective December 27, 1998 by and between Pathmark and C&S
Wholesale Grocers, Inc."
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5
The first sentence of paragraph 24 of Item 3(b)(2) is amended and
restated in its entirety to read as follows:
"Concurrently with the execution of the Original SMG-II Merger
Agreement and as required by Parent and the Purchaser, Parent, the Purchaser and
the SMG-II Stockholders entered into the Stockholders Agreement."
Paragraph 32 of Item 3(b)(2) is amended and restated in its entirety to
read as follows:
"In the Company Merger, (i) each issued and outstanding share of Class
A Common Stock and Class B Common Stock will be cancelled without payment to the
holders thereof and (ii) each issued and outstanding Share (other than Shares
held by any subsidiary of the Surviving SMG-II Corporation or in the treasury of
the Surviving SMG-II Corporation, or by Parent, the Purchaser or any other
subsidiary of Parent, which Shares will be cancelled, and other Shares, if any,
held by stockholders who perfect their appraisal rights under the DGCL) will by
virtue of the Company Merger and without any action by the holder thereof, be
converted into the right to receive $39.85 in cash (the "Company Merger
Consideration"), payable to the holder thereof, without interest thereon."
The first sentence of Paragraph 36 of Item 3(b)(2) is amended and
restated in its entirety to read as follows:
"Simultaneously with the execution of the Original SMG-II Merger
Agreement, Parent, Purchaser, SMG-II and PTK executed the Alternative Stock
Purchase Agreement."
Item 4. THE SOLICITATION OR RECOMMENDATION
Item 4(a) is hereby amended and restated in its entirety to read as
follows:
"(a) Recommendation of the Board of Directors
At a special meeting held on March 8, 1999, at which all the directors
(including the two directors elected by the holders of the Shares) were present
in person, the Board of Directors of the Company (the "Board") unanimously
determined that each of the Original Offer and the Company Merger, upon the
terms and conditions set forth in the Original SMG-II Merger Agreement and the
Company Merger Agreement, is fair to, and in the best interests of, the Company
and the holders of the Shares.
At a special meeting held on August 24, 1999, the Board unanimously
determined that each of the Offer and the Company Merger, upon the terms and
conditions set forth in the SMG-II
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6
Merger Agreement and the Company Merger Agreement, is fair to, and in the best
interests of, the Company and the holders of the Shares.
The Board unanimously recommends that holders of the Shares accept the
Offer and tender their Shares pursuant to the Offer.
For a discussion of the Board's reasons for its recommendation, see
"Background to the Offer; Reasons for Recommendation of the Company's Board of
Directors" below. A copy of a letter to the holders of the Shares from the
Company communicating the recommendation of the Board and a press release
announcing the execution of the Original SMG-II Merger Agreement, the Original
Offer and related transactions are filed herewith as Exhibit (a)(9) and Exhibit
(a)(10), respectively, and are incorporated herein by reference."
Item 4(b), subsection entitled "Background of the Offer" is hereby
amended and supplemented as follows:
"On March 23, 1999, a purported holder of shares of SMGH Preferred
Stock filed an action (the "Action") in the Court of Chancery of the State of
Delaware (the "Court"), purportedly on behalf of the class of the holders of the
Shares, against SMG-II, the Company, the Purchaser and the directors of SMG-II
and the Company (collectively, the "Defendants"). The complaint, entitled
Wolfson v. Supermarkets General Holdings Corporation, et al., C.A. No. 17047,
alleged, among other things, that certain of the Defendants breached certain
fiduciary duties owed to holders of the Shares. After expedited discovery and
briefing in the Action, counsel for the parties engaged in vigorous arms-length
settlement negotiations. On May 19, 1999, the plaintiff, by his counsel, entered
into a Memorandum of Understanding with the Defendants (by their counsel)
pursuant to which the parties agreed in principle to settle the Action.
Thereafter, on June 9, 1999, the plaintiff and the Defendants executed a
Stipulation and Agreement of Compromise, Settlement and Release (the "Settlement
Agreement"), which was submitted to the Court for approval. Pursuant to the
terms of the Settlement Agreement, the Defendants agreed, subject to final court
approval, that the Purchaser shall increase the Original Offer Price to $40.25
per Share, less the total amount awarded as fees and expenses to plaintiff's
counsel by the Court divided by the total number of Shares. Plaintiff's counsel
applied to the Court for an award of fees and expenses in an aggregate amount of
$1,956,268.40, or $0.40 per Share. The Court scheduled a hearing for July 22,
1999 to consider, among other things, the fairness, reasonableness and adequacy
of the settlement and the fee application made by plaintiff's counsel. At the
hearing, the Court approved the settlement and the fee application.
A joint meeting of the Boards of Directors of each of the Company and
SMG-II was held on August 24, 1999. At such meeting, the Boards of Directors of
the Company and SMGH discussed the reallocation of the overall purchase price of
$240,843,731.60 among the holders of shares of the SMG-II Stock and holders of
Shares, in view of the approval by the Court of the settlement and the fact that
no appeals have been filed by any holders of Shares during the appeal period.
After a lengthy discussion, the Boards of Directors of the Company and SMG-II
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unanimously agreed on the amended Applicable Merger Consideration and the Offer
Price. As a result, the Board of Directors of SMG-II unanimously approved the
SMG-II Merger Agreement Amendment. Following approval by the Boards of Directors
of each of the Company and SMG-II, the SMG-II Merger Agreement Amendment was
executed and delivered on August 24, 1999. In addition, the Alternative Stock
Purchase Amendment was executed and delivered on August 24, 1999."
Item 4(b), subsection entitled "Reasons for Recommendation" is hereby
amended and restated in its entirety to read as follows:
"Reasons for Recommendation
The Original Offer. At a special meeting held on March 8, 1999, the
Board determined that each of the Original Offer and the Company Merger, upon
the terms and conditions set forth in the Original SMG-II Merger Agreement and
the Company Merger Agreement, is fair to, and in the best interests of, the
Company and the holders of the Shares. In arriving at its decision regarding its
recommendation set forth above, the Board considered, among other things, the
following:
(1) the terms and conditions of the Original SMG-II Merger
Agreement, the Original Offer and the Company Merger,
including the amount and form of the consideration being
offered, the parties' representations, warranties and
covenants and the conditions to their respective obligations;
(2) the financial condition, results of operations, cash flows and
prospects of Pathmark, as well as the Board's knowledge of the
business, operations, assets and properties of Pathmark on
both a historical and prospective basis;
(3) the recent and historical market prices and trading volume of
the Shares (although the Board noted that the public trading
of the Shares is relatively sporadic), and the fact that the
Original Offer Price represents a premium of approximately 50%
over the $25.50 closing sale price for the Shares on March 3,
1999, the last day the Shares were traded prior to the public
announcement of the execution of the Original SMG-II Merger
Agreement;
(4) the current status of the industry in which Pathmark competes
and Pathmark's position in that industry;
(5) the financial condition and business reputation of Parent, and
the ability of Parent and Purchaser to finance and complete
the Offer in a timely manner;
(6) the extensive arms-length negotiations between SMG-II and
Parent that resulted in the SMG-II Merger Agreement;
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(7) the results of the process designed and executed by SMG-II and
Merrill Lynch to identify and solicit proposals from third
parties to enter into a strategic transaction with SMG-II; the
fact that SMG-II discussed the sale of SMG-II with such third
parties and explored alternatives to the sale of SMG-II,
including an initial public offering;
(8) the fact that the transactions contemplated by the SMG-II
Merger Agreement, including the Offer, provided for an all
cash payment to the holders of the Shares and the holders of
SMG-II Stock, with no financing condition;
(9) the fact that Parent initially proposed to purchase Pathmark
Stock rather than the Shares and the shares of SMG-II Stock, a
transaction that would have resulted in less after tax
proceeds due to the considerable tax of approximately $80 to
$90 million that would be incurred by PTK in that transaction;
and the fact that, at the request of SMG-II, Parent agreed
instead to acquire SMG-II in the SMG-II Merger, but required
SMG-II to agree to enter into the Alternative Stock Purchase
Agreement as part of the SMG-II Merger Agreement to provide
Parent with greater certainty of completing the transaction;
(10) the fact that although the Original Offer is more favorable to
the holders of the Shares than the Alternative Stock Purchase,
it requires the approval of the holders of capital stock of
SMG-II and that approximately $187.1 million of the total
consideration of $250 million is being paid to the holders of
the Shares in the Original Offer and the Company Merger, with
approximately $55.7 million being paid to the holders of
capital stock of SMG-II and $7.2 million to Mr. Donald
(assuming he satisfies his obligations under the sale and
transition agreement);
(11) the fact that the 'notional' value of a Share (i.e. current
liquidation or redemption price, if triggered, of a Share plus
accrued and unpaid dividends) under the Certificate of
Designation of the Shares was approximately $47.15 and the
fact that the consideration per Share to be paid in the Offer
and the Company Merger constitutes approximately 80% of that
value; and the fact that the rights of the holders of the
Shares to either a redemption or liquidation preference under
the Certificate of Designation of the Shares would not be
triggered by either the SMG- II Merger or the Alternative
Stock Purchase or any other similar type of transaction;
(12) the consequences to the holders of the Shares if either the
SMG-II Merger or the Alternative Stock Purchase is not
consummated, including the possibility that the Company might
not have the financial wherewithal to be able to satisfy the
mandatory redemption obligation under the Certificate of
Designation of the Shares in the future; and
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(13) the effect of the proposed transaction on the employees,
customers, creditors and suppliers of Pathmark and on the
communities surrounding Pathmark's facilities.
The Offer. At a special meeting held on August 24, 1999, the Board
determined that each of the Offer and the Company Merger, upon the terms and
conditions set forth in the SMG-II Merger Agreement and the Company Merger
Agreement, is fair to, and in the best interests of, the holders of the Shares.
In arriving at its decision regarding its recommendation set forth above, the
Board considered, among other things, the following:
(1) all of the factors set forth above under "Reasons for
Recommendation--The Original Offer"; and
(2) the increase in the Offer Price from $38.25 per Share to
$39.85 per Share.
The foregoing discussion of factors considered by the Board is not
intended to be exhaustive. The Board did not assign relative weights to the
above factors or determine that any factor was of particular importance. Rather,
the Board viewed its position and recommendations as being based on the totality
of the information presented and considered by it. In addition, it is possible
that different members of the Board assigned different weights to the factors."
Item 9. MATERIAL TO BE FILED AS EXHIBITS
Item 9 is hereby amended and supplemented as follows:
Exhibit No.
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"(a)(14) Amendment dated August 24, 1999 to the Agreement and Plan of
Merger dated March 9, 1999 among Parent, the Purchaser and
SMG-II.
(a)(15) Amendment dated August 24, 1999 to the Stock Purchase
Agreement dated March 9, 1999 among Parent, the Purchaser,
SMG-II and PTK.
(a)(16) Press Release issued by Parent on August 27, 1999."
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SIGNATURE
After reasonable 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.
Supermarkets General Holdings Corporation
By: /s/ Marc A. Strassler
-------------------------------------
Name: Marc A. Strassler
Title: Senior Vice President,
Secretary and General Counsel
Dated: August 27, 1999
<PAGE>
EXHIBIT INDEX
Exhibit No.
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*(a)(1) Offer to Purchase dated March 15, 1999.
*(a)(2) Letter of Transmittal dated March 15, 1999.
*(a)(3) Agreement and Plan of Merger dated March 9, 1999 among Parent,
the Purchaser and SMG-II.
*(a)(4) Stock Purchase Agreement dated March 9, 1999 among Parent, the
Purchaser, SMG-II and PTK.
*(a)(5) Stockholders Agreement dated March 9, 1999 among
Parent, the Purchaser and Stockholders listed on
Exhibit I thereto.
*(a)(6) Confidentiality Agreement dated December 30, 1998 between
Parent and SMG-II.
*(a)(7) A copy of pages 58 through 63 of the Annual Report on Form 10K
that was filed by the Company with the SEC on April 28, 1998.
*(a)(8) Sale and Transition agreement between Pathmark and James L.
Donald dated March 8, 1999.
*(a)(9) Letter from the Company to holders of the Shares dated March
15, 1999.
*(a)(10) Joint Press Release issued by the Company and Parent on March
9, 1999.
*(a)(11) Press Release issued by Parent on March 26, 1999.
*(a)(12) Press Release issued by the Company on May 19, 1999.
*(a)(13) Press Release issued by Parent on May 20, 1999.
(a)(14) Amendment dated August 24, 1999 to the Agreement and Plan of
Merger dated March 9, 1999 among Parent, the Purchaser and
SMG-II.
(a)(15) Amendment dated August 24, 1999 to the Stock Purchase
Agreement dated March 9, 1999 among Parent, the Purchaser,
SMG-II and PTK.
(a)(16) Press Release issued by Parent on August 27, 1999.
*(c)(1) Employment Agreement between Pathmark and Eileen Scott dated
February 1, 1999.
*(c)(2) Employment Agreement between Pathmark and John Sheehan dated
February 1, 1999.
*(c)(3) Employment Agreement between Pathmark and Marc A. Strassler
dated February 1, 1999.
*(c)(4) Employment Agreement between Pathmark and Frank Vitrano dated
February 1, 1999.
*(c)(5) Employment Agreement between Pathmark and Joseph Adelhardt
dated February 1, 1999.
*(c)(6) Employment Agreement between Pathmark and Harvey Gutman dated
February 1, 1999.
*(c)(7) Employment Agreement between Pathmark and Robert Joyce dated
February 1, 1999.
<PAGE>
*(c)(8) Employment Agreement between Pathmark and Myron D. Waxberg
dated February 1, 1999.
*(c)(9) Memorandum of Understanding dated May 19, 1999.
*(c)(10) Extension Agreement dated May 19, 1999 among Parent, the
Purchaser and the Stockholders listed on Exhibit I thereto.
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* Previously filed.
<PAGE>
Exhibit (a)(14)
AMENDMENT TO THE
AGREEMENT AND PLAN OF MERGER
AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated as of August 24, 1999, by and among KONINKLIJKE AHOLD N.V.,
a company organized under the laws of the Netherlands ("Parent"), AHOLD
ACQUISITION, INC., a company organized under the laws of Delaware and an
indirect wholly owned subsidiary of Parent ("Sub") and SMG-II HOLDINGS
CORPORATION, a company organized under the laws of Delaware (the "Company").
Terms used but not otherwise defined herein shall have the meanings assigned to
them in the Merger Agreement (as defined below).
W I T N E S S E T H :
WHEREAS, Parent, Sub and the Company entered into an Agreement
and Plan of Merger (the "Merger Agreement"), dated as of March 9, 1999, pursuant
to which the parties thereto agreed to merge Sub with and into the Company (the
"Merger");
WHEREAS, a certain shareholder ("Plaintiff") brought an action
(the "Action") in the Court of Chancery of the State of Delaware (the "Court"),
styled Elliot Wolfson v. Supermarkets General Holdings Corporation, et al., C.A.
No. 17047;
WHEREAS, the Action was filed as a class action against
Supermarkets General Holdings Corporation, a company organized under the laws of
Delaware ("SMGH"), the Company, Sub, and certain individual defendants (the
"Director Defendants"), seeking, inter alia, injunctive and declaratory relief
and/or monetary relief with respect to the Tender Offer;
WHEREAS, SMGH, the Company, Sub, the Director Defendants and
Plaintiff settled the Action pursuant to the Memorandum of Understanding, dated
May 19, 1999, and a Stipulation and Agreement of Compromise, Settlement and
Release (the "Settlement"), dated as of June 9, 1999, which was submitted to the
Court for approval;
WHEREAS, on July 22, 1999 the Court certified the action as a
class action and approved the Settlement and, as of the date hereof, the period
for appeals has expired;
WHEREAS, Parent, Sub and the Company wish to amend the Merger
Agreement pursuant to Section 1(a)(iii) of the Settlement;
WHEREAS, Section 9.11 of the Merger Agreement provides that
the Merger Agreement may be amended by an agreement in writing signed by the
parties thereto;
<PAGE>
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. Amendment. The Merger Agreement is hereby amended by (i)
deleting the reference to "$38.25 per share" in the fifth recital of the Merger
Agreement and replacing it with "$39.85 per share"; (ii) deleting clause (a) of
Section 2.2 of the Merger Agreement in its entirety and replacing it with the
following:
"(a) Each share of Stock issued and outstanding immediately
prior to the Effective Time (other than (i) any shares of Stock which are held
by any subsidiary of the Company or in the treasury of the Company, or which are
held, directly or indirectly, by Parent or any direct or indirect subsidiary of
Parent (including Sub), all of which shall cease to be outstanding and be
canceled and retired and none of which shall receive any payment with respect
thereto and (ii) shares of Stock held by Dissenting Stockholders (as such term
is defined in Section 2.3)) and all rights in respect thereof shall, by virtue
of the Merger and without any action on the part of the holder thereof,
forthwith cease to exist and be converted into and represent the right to
receive an amount in cash, without interest as follows (such amount, with
respect to each share of Stock, the "Applicable Merger Consideration"):
(i) each share of Class A Common Stock - $4.38;
(ii) each share of Class B Common Stock - $4.38;
(iii) each share of Series A Preferred Stock - $93.46;
(iv) each share of Series B Preferred Stock - $93.46; and
(v) each share of Series C Preferred Stock - $93.46.";
(iii) deleting the references to "Common Stock" in the
second sentence in Section 2.4 and replacing it with
"Stock", (iv) deleting the reference to "Company" in
clause (4) of the last paragraph in Section 5.3 and
replacing it with "Pathmark"; (v) deleting the
reference to "Promptly after the execution of this
Agreement," in Section 5.4 and replacing it with "Not
later than September 3, 1999,"; and (vi) deleting the
reference to "$38.25" in clause (a) of Section 1.2 of
Exhibit 2 to the Merger Agreement and replacing it
with "$39.85".
2. Governing Law. This Amendment, and the legal relations
between the parties hereto, shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements executed and to
be performed solely within such State, provided, however, that any of the
provisions contained herein with respect to the merger shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements executed and to be performed solely within such State.
<PAGE>
3. Miscellaneous.
(a) No Third Party Beneficiaries. Nothing in this Amendment,
expressed or implied, is intended to confer on any Person other than the parties
hereto or their respective successors and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Amendment.
(b) Counterparts. This Amendment may be executed in two or
more counter-parts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused their duly
authorized officers to execute this Amendment as of the date first above
written.
KONINKLIJKE AHOLD N.V.
By: /s/ R. G. Tobin
--------------------------------
Name: R.G. Tobin
Title: Executive Vice President
AHOLD ACQUISITION INC.
By: /s/ R. G. Tobin
--------------------------------
Name: R. G. Tobin
Title: Executive Vice President
SMG-II HOLDINGS CORPORATION
By: /s/ Marc A. Strassler
--------------------------------
Name: Marc A. Strassler
Title: Senior Vice President
<PAGE>
Exhibit (a)(15)
AMENDMENT TO THE
STOCK PURCHASE AGREEMENT
AMENDMENT TO THE STOCK PURCHASE AGREEMENT (this "Amendment"),
dated as of August 24, 1999, by and among KONINKLIJKE AHOLD N.V., a company
organized under the laws of the Netherlands ("Parent"), AHOLD ACQUISITION, INC.,
a company organized under the laws of Delaware and an indirect wholly owned
subsidiary of Parent ("Sub"), SMG-II HOLDINGS CORPORATION, a company organized
under the laws of Delaware ("SMG - II") and PTK HOLDINGS, INC. a company
organized under the laws of Delaware ("PTK"). Terms used but not otherwise
defined herein shall have the meanings assigned to them in the Stock Purchase
Agreement (as defined below).
W I T N E S S E T H :
WHEREAS, Parent, Sub and SMG-II entered into an Agreement and
Plan of Merger (the "Merger Agreement"), dated March 9, 1999 pursuant to which
the parties thereto agreed to merge Sub with and into SMG-II (the "Merger");
WHEREAS, Parent, Sub, SMG-II and PTK entered into a Stock
Purchase Agreement (the "Stock Purchase Agreement"), dated as of March 9, 1999,
pursuant to which the parties thereto agreed that, in the event certain
conditions in connection with the Tender Offer set forth in the Merger Agreement
are not satisfied, SMG-II shall in the alternative cause PTK to sell, and Sub
shall in the alternative purchase, an aggregate of 100 shares of common stock,
par value $.10 per share, of Pathmark Stores, Inc., a company organized under
the laws of Delaware (the "Company"), being all of the issued and outstanding
shares of capital stock of the Company, all in accordance with the Stock
Purchase Agreement;
WHEREAS, a certain shareholder ("Plaintiff") brought an action
(the "Action") in the Court of Chancery of the State of Delaware (the "Court"),
styled Elliot Wolfson v. Supermarkets General Holdings Corporation, et al., C.A.
No. 17047;
WHEREAS, the Action was filed as a class action against
Supermarkets General Holdings Corporation, a company organized under the laws of
Delaware ("SMGH"), SMG-II, Sub, and certain individual defendants (the "Director
Defendants"), seeking, inter alia, injunctive and declaratory relief and/or
monetary relief with respect to the Tender Offer;
WHEREAS, SMGH, SMG-II, Sub, the Director Defendants and
Plaintiff settled the Action pursuant to the Memorandum of Understanding, dated
May 19, 1999, and a Stipulation and Agreement of Compromise, Settlement and
Release (the "Settlement"), dated as of June 9, 1999, which was submitted to the
Court for approval;
<PAGE>
WHEREAS, on July 22, 1999 the Court certified the action as a
class action and approved the Settlement and as of the date hereof, the period
for appeals has expired;
WHEREAS, Parent, Sub, SMG-II and PTK wish to amend the Stock
Purchase Agreement pursuant to Section 1(a)(iii) of the Settlement;
WHEREAS, Section 10.11 of the Stock Purchase Agreement
provides that the Stock Purchase Agreement may be amended by an agreement in
writing signed by the parties thereto;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. Amendment. The Stock Purchase Agreement is hereby amended
by deleting the reference to "$38.25 per share" in the second recital of the
Stock Purchase Agreement and replacing it with "$39.85 per share".
2. Governing Law. This Amendment, and the legal relations
between the parties hereto, shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements executed and to
be performed solely within such State.
3. Miscellaneous.
(a) No Third Party Beneficiaries. Nothing in this Amendment,
expressed or implied, is intended to confer on any Person other than the parties
hereto or their respective successors and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Amendment.
(b) Counterparts. This Amendment may be executed in two or
more counter-parts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused their duly
authorized officers to execute this Amendment as of the date first above
written.
KONINKLIJKE AHOLD N.V.
By: /s/ R. G. Tobin
-------------------------------
Name: R. G. Tobin
Title: Executive Vice President
AHOLD ACQUISITION INC.
By: /s/ R. G. Tobin
-------------------------------
Name: R. G. Tobin
Title: President
SMG-II HOLDINGS CORPORATION
By: /s/ Marc A. Strassler
-------------------------------
Name: Marc A. Strassler
Title: Senior Vice President
PTK HOLDINGS, INC.
By: /s/ Marc A. Strassler
-------------------------------
Name: Marc A. Strassler
Title: Senior Vice President
<PAGE>
Exhibit (a)(16)
August 27, 1999
31 75 6595720
Ahold extends tender offer in connection with Pathmark
Zaandam, The Netherlands, August 27, 1999 - Royal Ahold today
announced that its wholly-owned subsidiary Ahold Acquisition, Inc. is extending
the tender offer for the preferred stock of Supermarkets General Holdings
Corporation until 5:00 p.m., New York City time, on Friday, October 8, 1999 and
is increasing the offer price for the preferred stock from $38.25 to $39.85 per
share. The offer had been scheduled to expire on Friday, September 3, 1999.
The tender offer has been made pursuant to a merger agreement
under which Royal Ahold will acquire all of the outstanding shares of SMG-II
Holdings Corporation, the company which controls the US supermarket company
Pathmark Stores, Inc. through Supermarkets General. The increase in the offer
price for the Supermarkets General preferred stock is being made in connection
with a Settlement Agreement reached in a stockholder class action lawsuit. The
Settlement Agreement was approved by the Court of Chancery of the State of
Delaware on July 22, 1999, and the period for any appeal or review expired on
August 23, 1999.
The merger agreement has been amended to reflect the increase
in the offer price for the Supermarkets General preferred stock and to reduce
the total amount of merger consideration to be paid by Ahold Acquisition to the
holders of the capital stock of SMG-II. As a result, the overall consideration
Ahold Acquisition will pay in connection with the Pathmark acquisition has not
increased.
Based upon information provided by Citibank N.A., as
depositary for the offer, as of the close of business on August 24, 1999,
approximately 1.948 million shares (40%) of the outstanding Supermarkets General
preferred stock have been tendered and not withdrawn. Completion of the tender
offer is subject to a number of conditions, including obtaining necessary
regulatory approvals and at least 66 2/3% of the shares of Supermarkets General
preferred stock being tendered in the offer and not withdrawn. In the event that
66 2/3% of the Supermarkets General preferred stock is not tendered, SMG-II has
agreed to cause its subsidiary to sell to Ahold Acquisition all of the
outstanding shares of Pathmark for the same purchase price.
Royal Ahold press releases may contain 'forward-looking
statements'. Actual results may differ from such statements as they may have
been influenced by factors beyond the company's ability to control.
Royal Ahold is a rapidly growing international food retailer
with leading supermarket companies in the United States, Europe, Latin America
and Asia. The company operates more than 3,600 supermarkets, hypermarkets and
specialty stores and had 1998 sales of $30.9 billion. In the United States Ahold
is the leading supermarket operator along the eastern
<PAGE>
seaboard with more than 1,000 stores in five operating companies: Stop & Shop,
Giant-Landover, Giant-Carlisle, Tops and BI-LO. Sales in the US totaled $16.2
billion in 1998. In March 1999 Ahold announced its intention to acquire Pathmark
Stores, Inc. with sales of $3.7 billion and 132 supermarkets in the New York
metropolitan area.
In addition to its listing on the New York Stock Exchange
(NYSE: AHO), Ahold's shares are trading on the Amsterdam Exchanges and on the
Swiss Exchange, and Ahold options are also traded on the American Stock Exchange
(AMEX). Ahold common shares may be accessed on the Reuter Equities 2000 Service
under the symbol AHLN.AS and on Quotron under the symbol AHOLN.EU. Additional
information is available on Ahold's website:
http://www.ahold.com.
Ahold Public Relations, tel. +31 75 659 57 20
After office hours: Hans Gobes: + 31 6 55 82 22 98 / Jan Hol: +31 6 22 933 137
