UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

SCHEDULE 14D-9

(Rule 14d-101)

 

Solicitation/Recommendation Statement

Under Section 14(d)(4) of the Securities Exchange Act of 1934

(Amendment No. 2)

 


 

Smart & Final Stores, Inc.

(Name of Subject Company)

 


 

Smart & Final Stores, Inc.

(Name of Persons Filing Statement)

 


 

Common Stock, par value $0.001 per share

(Title of Class of Securities)

 

83190B 101

(CUSIP Number of Class of Securities)

 

Leland P. Smith

Senior Vice President, Real Estate, General Counsel and Secretary

Smart & Final Stores, Inc.

600 Citadel Drive

Commerce, California 90040

(323) 869-7500

(Name, address, and telephone numbers of person authorized to receive notices and communications

on behalf of the persons filing statement)

 

Copies to

Michael Woronoff, P.C.

Pippa M. Bond, P.C.

Kirkland & Ellis LLP

333 South Hope Street

29th Floor

Los Angeles, California 90071

(213) 680-8400

 


 

o           Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

 

 


 

This Amendment No. 2 (this “Amendment No. 2”) amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Smart & Final Stores, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “SEC”) on May 14, 2019 (together with any subsequent amendments and supplements thereto, including this Amendment No. 2, the “Schedule 14D-9”). The Schedule 14D-9 relates to the cash tender offer by First Street Merger Sub, Inc., a Delaware corporation (“Purchaser”) and a wholly owned subsidiary of First Street Parent, Inc., a Delaware corporation (“Parent”) (both Parent and Purchaser are controlled by certain equity funds (the “Apollo Funds”) managed by Apollo Management IX, L.P. (“Apollo Management IX”), a Delaware limited partnership and subsidiary of Apollo Global Management, LLC (“Apollo Global Management” and, together with its affiliates, “Apollo”), to acquire all of the outstanding shares of the Company’s common stock, par value $0.001 per share, at a purchase price of $6.50 per share (“Shares”), net to the seller thereof in cash, with interest, less any applicable tax withholding (such offer, as it may be amended or supplemented from time to time, the “Offer”). The Offer is being made upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 14, 2019 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), and the related Letter of Transmittal (as it may be amended or supplemented from time to time, the “Letter of Transmittal”). Copies of the Offer to Purchase and the Letter of Transmittal were filed as Exhibits (a)(1)(A) and (a)(1)(B) to the Schedule 14D-9, respectively, and are incorporated herein by reference.

 

The information set forth in the Schedule 14D-9 remains unchanged and is incorporated herein by reference, except that such information is hereby amended or supplemented to the extent specifically provided herein. Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule 14D-9.

 

ITEM 8.                  ADDITIONAL INFORMATION.

 

The paragraph of Item 8 under the heading “—Additional Information—Litigation” is hereby amended and restated in its entirety to read as follows:

 

“As of May 30, 2019, the Company is aware of two putative class action lawsuits challenging the disclosures concerning the transactions contemplated by the Merger Agreement. The first was filed by a purported Company stockholder and is pending in the United States District Court for the District of Delaware against the Company, the members of the Company Board, Apollo Global Management, Parent and Purchaser. That action is captioned Anthony Franchi v. Smart & Final Stores, Inc., et al., Case No. 1:19-cv-00940 (filed May 20, 2019) (the “Franchi Complaint”). The second was filed by a purported Company stockholder and is pending in the United States District Court of Delaware against the Company and the members of the Company Board. That action is captioned Thomas O’Shea v. Smart & Final Stores, Inc., et al., Case No. 1:19-cv-01003 (filed May 30, 2019) (the “O’Shea Complaint”). The complaints generally allege, among other things, that the defendants violated Sections 14(d), 14(e) and 20(a) of the Exchange Act and Rules 14a-9 and 14d-9 promulgated thereunder by making false and misleading statements or failing to disclose all material information needed by stockholders to make an informed decision whether to tender their Shares in the Schedule 14D-9 filed by the Company with the SEC on May 14, 2019. The complaints seek, among other things, an injunction against the Transactions, rescissory damages should the Transactions not be enjoined, a declaration from the court that the defendants violated federal securities laws, and an award of attorneys’ and experts’ fees. Although the complaints request injunctive relief, the plaintiff has not filed a motion to enjoin the transactions at this time. Each of the defendants believes that the actions are without merit and intends to defend vigorously against all claims asserted against them. The full complaints are attached hereto as Exhibit (a)(5)(F) and (a)(5)(M), respectively.”

 

ITEM 9.                  EXHIBITS.

 

Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding the following exhibit:

 

Exhibit
No.

 

Description

 

 

 

(a)(5)(M)

 

Class Action Complaint filed as of May 30, 2019 (Thomas O’Shea v. Smart & Final Stores, Inc., et al., Case No. 1:19-cv-01003).

 

 

 

(a)(5)(N)

 

Q&A, distributed May 31, 2019.

 

2


 

SIGNATURE

 

After due inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

 

Smart & Final Stores, Inc.

 

 

 

By:

/s/ Leland P. Smith

 

 

Leland P. Smith

 

 

Senior Vice President, General Counsel

 

Dated: May 31, 2019

 

3


Exhibit (a)(5)(M)

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 1 of 18 PageID #: 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE C.A. No: JURY TRIAL DEMANDED COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS Plaintiff Thomas O’Shea (“Plaintiff”), by Plaintiff’s undersigned attorneys, for Plaintiff’s complaint against Defendants (defined below), alleges the following based upon personal knowledge as to Plaintiff and Plaintiff’s own acts, and upon information and belief as to all other matters, based upon, inter alia, the investigation conducted by and through Plaintiff’s attorneys. NATURE OF THE ACTION 1. This is an action against Smart & Final Stores, Inc. (“Smart & Final” or the “Company”) and its Board of Directors (the “Board” or the “Individual Defendants”) for violations of Sections 14(e), 14(d)(4), and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. §§ 78n(e), 78n(d)(4), and 78t(a), and Rule 14d-9 promulgated thereunder by SEC, 17 C.F.R. § 240.14d-9, in connection with Apollo Global Management, LLC’s (“Apollo”) affiliates’ proposed acquisition of Smart & Final (the “Proposed Transaction”). 1 THOMAS O’SHEA, Plaintiff, v. SMART & FINAL STORES, INC., DAVID G. HIRZ, DAVID B. KAPLAN, NORMAN H. AXELROD, ANDREW A. GIANCAMILLI, DENNIS T. GIES, PAUL N. HOPKINS, ELAINE K. RUBIN, JOSEPH S. TESORIERO, and KENNETH I. TUCHMAN, Defendants.

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 2 of 18 PageID #: 2 JURISDICTION AND VENUE 2. The claims asserted herein arise under and pursuant to Sections 14(e), 14(d)(4), and 20(a) of the Exchange Act (15 U.S.C. §§ 78n(e), 78n(d)(4), and 78t(a)) and Rule 14d-9 promulgated thereunder by the SEC (17 C.F.R. § 240.14d-9). 3. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331, and Section 27 of the Exchange Act, 15 U.S.C. § 78aa. 4. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and Section 27 of the Exchange Act (15 U.S.C. § 78aa) as the Company is incorporated in this District and a substantial portion of the transactions and wrongs complained of herein occurred and/or had a substantial effect in this District. 5. In connection with the acts, conduct and other wrongs alleged in this complaint, Defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including but not limited to, the United States mails, interstate telephone communications and the facilities of the national securities exchange. PARTIES 6. Plaintiff is, and has been at all relevant times hereto, an owner of Smart & Final’s common stock. 7. Defendant Smart & Final operates as a food retailer in the United States. Smart & Final is incorporated in Delaware with principal executive offices located in Commerce, California. Smart & Final’s common stock trades on the New York Stock Exchange under the ticker symbol, “SFS.” 8. Defendant David G. Hirz (“Hirz”) is President, Chief Executive Officer, and a director of the Company. 2

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 3 of 18 PageID #: 3 9. Defendant David B. Kaplan (“Kaplan”) is Chairman of the Board and a director of the Company. Defendant Kaplan is a Co-Founder of Ares Management Corporation (“Ares”), which is an affiliate of the entities which collectively own a significant amount of the Company’s shares—Ares Corporate Opportunities Fund III, L.P. and Ares Corporate Opportunities Fund IV, L.P. 10. Defendant Norman H. Axelrod (“Axelrod”) is a director of the Company. 11. Defendant Andrew A. Giancamilli (“Giancamilli”) is a director of the Company. 12. Defendant Dennis T. Gies (“Gies”) is a director of the Company. He is a Principal in the Private Equity Group of Ares. 13. Defendant Paul N. Hopkins (“Hopkins”) is a director of the Company. 14. Defendant Elaine K. Rubin (“Rubin”) is a director of the Company. 15. Defendant Joseph S. Tesoriero (“Tesoriero”) is a director of the Company. 16. Defendant Kenneth I. Tuchman (“Tuchman”) is a director of the Company 17. Defendants Hirz, Kaplan, Axelrod, Giancamilli, Gies, Hopkins, Rubin, Tesoriero, and Tuchman are collectively referred to herein as the “Individual Defendants.” 18. Defendants Smart & Final and the Individual Defendants are collectively referred to herein as the “Defendants.” SUBSTANTIVE ALLEGATIONS A. Background 19. The Company was owned by funds managed by affiliates of Apollo from 2007 to 2012. 20. In November 2012, affiliates of Ares purchased the Company from Apollo. 3

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 4 of 18 PageID #: 4 21. In 2014, the Company completed an initial public offering, whereby affiliates of Ares continued to own a substantial interest in the Company’s common stock. B. The Proposed Transaction 22. On April 16, 2019, Smart & Final issued a press release announcing its definitive merger agreement with certain investment funds managed by affiliates of Apollo. Pursuant to the terms of the merger agreement, the investment funds managed by affiliates of Apollo will acquire all of the outstanding shares of Smart & Final’s common stock for $6.50 per share in cash (the “Tender Offer”). The Tender Offer is scheduled to expire on June 17, 2019 (the “Expiration Date”). The press release stated, in pertinent part: Smart & Final Agrees to be Acquired by Funds Managed by Affiliates of Apollo Global Management - Cash Price of $6.50 per share Represents Total Valuation of $1.12 billion - Majority Shareholder Ares Management Supports Transaction - Apollo Funds Look Forward to Dynamic Long-Term Growth, Continuing Smart & Final History Since 1871 NEWS PROVIDED BY Smart & Final Stores, Inc. Apr 16, 2019, 17:21 ET COMMERCE, Calif. and NEW YORK, April 16, 2019 /PRNewswire/ --Smart & Final Stores, Inc. (NYSE: SFS) (“Smart & Final” or “Company”), a leading value-oriented food and everyday staples retailer, today announced that it has entered into a definitive merger agreement with certain investment funds (“Apollo Funds”) managed by affiliates of Apollo Global Management, LLC (together with its consolidated subsidiaries, “Apollo”) (NYSE: APO), a leading global alternative investment manager, pursuant to which the Apollo Funds will acquire all the outstanding shares of Smart & Final’s common stock for $6.50 per share in cash. * * * “We are pleased to fully support this transaction and we would like to thank the Smart & Final management team for its strong commitment and execution over the past seven years,” said David Kaplan, Smart & Final’s Chairman of the Board and Co-Founder of Ares Management. “We wish the management team and employees continued success under new ownership.” 4

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 5 of 18 PageID #: 5 Andrew Jhawar, Senior Partner and Head of the Consumer and Retail Group at Apollo said, “We are very excited for our funds to be re-acquiring Smart & Final and expect to leverage Apollo’s deep expertise and history of success in food retail to support the Company as it embarks on its next chapter. The unique differentiation and strong value proposition of both the Smart & Final and Smart Foodservice banners are evident to us and we welcome the opportunity to augment and enhance the experience for the Company’s household and business customers. We look forward to working with the management team as well as the over 12,000 team members to capitalize on the Company’s position in the marketplace.” Smart & Final was previously owned by funds managed by affiliates of Apollo from 2007 to 2012 before its sale to Ares Management, L.P. in November 2012. Additional Transaction Details The transaction will be completed through an all-cash tender offer. The Smart & Final Board of Directors unanimously recommends that Smart & Final stockholders tender their shares in the offer. The transaction, which is expected to close by the third quarter of 2019, is conditioned upon satisfaction of the minimum tender condition which requires that shares representing more than 50 percent of the Company’s common shares be tendered, the receipt of approval under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Mexican competition law approval, and other customary closing conditions. The Company’s major stockholders, affiliates of Ares Management, representing a majority of the outstanding shares have entered into a Tender and Support Agreement committing them to tender their shares into the tender offer. The transaction has fully committed financing in place. Upon completion of the transaction, Smart & Final will be a privately held portfolio company of the Apollo Funds, and Smart & Final’s ordinary shares will no longer be listed on the New York Stock Exchange. 23. On May 14, 2019, Smart & Final filed with the SEC a Schedule 14D-9 Solicitation/Recommendation Statement under Section 14(d)(4) of the Exchange Act (the “Solicitation Statement”) in connection with the Proposed Transaction. C. The Solicitation Statement Contains Materially False and Misleading Statements and Omissions 24. The Solicitation Statement, which recommends that Smart & Final shareholders tender their shares to affiliates of Apollo in connection with the Proposed Transaction, omits and/or 5

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 6 of 18 PageID #: 6 misrepresents material information concerning: (i) Smart & Final’s financial projections; (ii) the valuation analyses prepared by Smart & Final’s financial advisors, Jefferies LLC (“Jefferies”) and Centerview Partners LLC (“Centerview”), in support of their fairness opinions of the Proposed Transaction; (iii) potential conflicts of interest involving Centerview; and (iv) Smart & Final’s insiders’ potential conflicts of interest in the Proposed Transaction. 25. The omission of the material information (referenced below) renders the Solicitation Statement false and misleading. 26. The Tender Offer is scheduled to expire at “5:00 p.m. New York City Time, on June 17, 2019.” It is imperative that the material information that was omitted from the Solicitation Statement be disclosed to the Company’s shareholders prior to the Expiration Date to enable them to make an informed decision as to whether to tender their shares. Plaintiff seeks to enjoin Defendants from closing the Tender Offer or the Proposed Transaction unless and until the material misstatements and omissions (referenced below) are remedied. In the event the Proposed Transaction is consummated, Plaintiff seeks to recover damages resulting from Defendants’ misconduct. 1. Material Omissions Concerning Smart & Final’s Financial Projections 27. The Solicitation Statement omits material information concerning Smart & Final’s financial projections. 28. The Solicitation Statement references “certain unaudited prospective financial information for the fiscal years 2019 through 2023” (the “Management Projections”) which were prepared by Smart & Final’s management. The Management Projections were provided to and utilized by the Company’s Board in connection with approving the Proposed Transaction, the Strategic Review Committee of the Board (the “Committee”) in purportedly reviewing potential 6

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 7 of 18 PageID #: 7 strategic alternatives and makings its recommendation to the Board to approve the Proposed Transaction, and the Company’s financial advisors for purposes of their financial analyses and fairness opinions. The Management Projections were prepared in September 2018 and were later updated in November 2018 based on Smart & Final management’s updated best estimates and expectations of the 2018 fiscal year financial results. 29. The Solicitation Statement, however, fails to disclose the following concerning the Management Projections: (1) all line items used to calculate EBITDA and Adjusted EBITDA; (2) a reconciliation of all non-GAAP to GAAP metrics; and (3) the September 2018 financial projections. 30. When a company discloses non-GAAP financial measures in a Solicitation Statement that were relied upon by its board of directors in recommending that shareholders tender their shares pursuant to a tender offer, the company must also disclose, pursuant to SEC Regulation G, all projections and information necessary to make the non-GAAP measures not misleading, and must provide a reconciliation (by schedule or other clearly understandable method) of the differences between the non-GAAP financial measures disclosed or released with the most comparable financial measures calculated and presented in accordance with GAAP. 17 C.F.R. § 244.100. 31. The SEC has increased its scrutiny of a company’s use of non-GAAP financial measures. Indeed, former SEC Chairwoman Mary Jo White has spoken out against the frequent use by publicly traded companies of non-GAAP financial measures: In too many cases, the non-GAAP information, which is meant to supplement the GAAP information, has become the key message to investors, crowding out and effectively supplanting the GAAP presentation. Jim Schnurr, our Chief Accountant, Mark Kronforst, our Chief Accountant in the Division of Corporation Finance and I, along with other members of the staff, have spoken out frequently about our concerns to raise the awareness of boards, management and investors. And last 7

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 8 of 18 PageID #: 8 month, the staff issued guidance addressing a number of troublesome practices which can make non-GAAP disclosures misleading: the lack of equal or greater prominence for GAAP measures; exclusion of normal, recurring cash operating expenses; individually tailored non-GAAP revenues; lack of consistency; cherry-picking; and the use of cash per share data. I strongly urge companies to carefully consider this guidance and revisit their approach to non-GAAP disclosures. I also urge again, as I did last December, that appropriate controls be considered and that audit committees carefully oversee their company’s use of non-GAAP measures and disclosures.1 32. The disclosure of Smart & Final’s projected financial information is material because it would provide Smart & Final shareholders with a basis to project the future financial performance of Smart & Final, and would allow shareholders to better understand the financial analyses performed by Jefferies and Centerview in support of their fairness opinions. Without such information, which is uniquely possessed by Smart & Final and its financial advisors, Smart & Final shareholders are unable to determine how much weight, if any, to place on Jefferies’ and Centerview’s fairness opinions in determining whether to tender their shares to affiliates of Apollo. 33. Accordingly, in order to bring the Solicitation Statement into compliance with SEC regulations, as well as to cure the materially misleading nature of the Management Projections, Defendants must provide a reconciliation table of the non-GAAP measures to the most comparable GAAP measures. The Company must also disclose the line item projections used to calculate these non-GAAP measures. Such projections are necessary to make the non-GAAP projections included in the Solicitation Statement not misleading. 34. The above-referenced omitted information, if disclosed, would significantly alter the total mix of information available to Smart & Final shareholders. 1 Mary Jo White, Keynote Address, International Corporate Governance Network Annual Conference: Focusing the Lens of Disclosure to Set the Path Forward on Board Diversity, Non-GAAP, and Sustainability (June 27, 2016), https://www.sec.gov/news/speech/chair-white-icgn-speech.html (footnotes omitted) (last visited May 29, 2019). 8

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 9 of 18 PageID #: 9 2. Material Omissions Concerning Jefferies’ and Centerview’s Financial Analyses 35. The Solicitation Statement omits material information concerning the respective analyses performed by Jefferies and Centerview, who were both retained by Smart & Final as financial advisors in connection with the Proposed Transaction. 36. The Solicitation Statement fails to disclose the individual multiples and financial metrics of each company utilized in Jefferies’ “Selected Public Companies Analysis.” 37. The Solicitation Statement fails to disclose the individual multiples and financial metrics of the companies involved in each transaction utilized in Jefferies’ “Selected Precedent Transactions Analysis.” 38. The Solicitation Statement fails to disclose the following concerning Jefferies “Discounted Cash Flow Analysis”: (1) the terminal values of the Company; and (2) the individual inputs and assumptions underlying the discount rate range of 11.0% to 12.0% and the perpetuity growth rates of 0.0% to 2.0%. 39. The Solicitation Statement states that “Jefferies observed certain additional information that was not considered part of Jefferies’ financial analysis with respect to its opinion but was noted for informational purposes, including the implied premiums paid or proposed to be paid in selected all-cash mergers and acquisition transactions announced from January 1, 2012 through April 15, 2019 with transaction values ranging from $200 million to $2.0 billion involving U.S. domiciled and publicly traded target companies…” The Solicitation Statement, however, fails to disclose the following concerning Jefferies analysis of the purported premiums paid or proposed to be paid in those transactions: (1) the transactions selected by Jefferies in its analysis and Jefferies’ rationale for using these transactions as comparable transactions to the Proposed Transaction; (2) the premiums paid or proposed to be paid in each of those transactions; and (3) 9

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 10 of 18 PageID #: 10 the individual financial metrics of the companies involved in the transactions selected by Jefferies. 40. The Solicitation Statement fails to disclose the following concerning Centerview’s “Selected Public Company Analysis”: the individual inputs and financial metrics underlying EV/NTM EBITDA Multiples for the selected companies. 41. The Solicitation Statement fails to disclose the following concerning Centerview’s “Discounted Cash Flow Analysis”: (1) the terminal values of the Company; and (2) the individual inputs and assumptions underlying the discount rates ranging from 8.25% to 10.25% and the perpetuity growth rates of 1.5% to 2.5%. 42. The Solicitation Statement fails to disclose the following concerning the “Other Factors” Centerview relied upon in rendering its opinion: (1) the individual stock price targets for the Company and the sources thereof. 43. The valuation methods, underlying assumptions, and key inputs used by Jefferies and Centerview in rendering their purported fairness opinions must be fairly disclosed to Smart & Final shareholders. The descriptions of the fairness opinions and analyses of Jefferies and Centerview, however, fail to include key inputs and assumptions underlying those analyses. Without the information described above, Smart & Final shareholders are unable to fully understand Jefferies and Centerview’s fairness opinions and analyses, and are thus unable to determine how much weight, if any, to place on it in determining whether to tender their shares to Apollo’s affiliates. 44. The above-referenced omitted information, if disclosed, would significantly alter the total mix of information available to Smart & Final shareholders. 3. Material Omissions Concerning Centerview’s Potential Conflicts of Interest 45. The Solicitation Statement omits material information concerning potential 10

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 11 of 18 PageID #: 11 conflicts of interest involving Centerview. 46. The Solicitation Statement fails to disclose the nature of the services Centerview is providing or has provided to the portfolio companies of Ares,2 as well as the amount of compensation Centerview will receive or has received for providing such services. This information is material, as Defendant Kaplan is a Co-Founder, Director and Partner of Ares. Further, Defendant Gies is a Principal in the Ares Private Equity Group. 47.The Solicitation Statement fails to disclose the timing and nature of the services Centerview provided to Hexion Inc., an affiliate of First Street Parent, Inc. (“Parent”). This information is material as Parent is the parent company of First Street Merger Sub, Inc., the offeror of the tender offer for Smart & Final. Parent is controlled by certain equity funds managed by a subsidiary of Apollo. 48. The Solicitation Statement fails to disclose the timing and nature of the services Centerview provided or is currently providing to the financial creditor groups or ad hoc creditor committees of which one or more affiliates of Ares and/or Apollo is a member, as well as the amount of compensation Centerview has received or will receive for providing such services. 49. The Solicitation Statement fails to disclose the amount of compensation Centerview received for providing “services to a committee of independent members of the Board of Directors of Caesars Entertainment Corporation, a publicly traded portfolio company of Apollo-managed funds and TPG Capital, LP . . . in connection with a merger transaction with Caesars Acquisition Corporation, another publicly traded portfolio company of Apollo-managed funds and TPG, and other matters[.]” 2 Ares Management Corporation was formerly known as Ares Management, L.P. before the announcement of its name change on November 26, 2018. 11

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 12 of 18 PageID #: 12 50. Disclosure of a financial advisor’s compensation and potential conflicts of interest to shareholders is required due to their central role in the evaluation, exploration, selection, and implementation of strategic alternatives and the rendering of any fairness opinions. Disclosure of a financial advisor’s potential conflicts of interest may inform shareholders on how much weight to place on that analysis. 51.The omission of the above-referenced information renders the Solicitation Statement materially incomplete and misleading. This information, if disclosed, would significantly alter the total mix of information available to Smart & Final shareholders. 4. Material Omissions Concerning Smart & Final’s Insiders Potential Conflicts of Interest 52. The Solicitation Statement omits material information concerning potential conflicts of interest involving Smart & Final’s insiders. 53. In connection with the Proposed Transaction, certain key employees and executive officers of the Company stand to receive significant transaction bonuses and awards. 54. The Solicitation Statement, however, fails to disclose the timing and nature of all discussions regarding the transaction bonuses to be received by the Company’s executive officers and employees in connection with the Proposed Transaction, and awards to Defendant Hirz, as well as who participated in all such discussions. 55. This information is necessary for shareholders to understand potential conflicts of interest of management and the Board. Such information may illuminate the motivations that would prevent fiduciaries from acting solely in the best interests of the Company’s shareholders 56. The above-referenced omitted information, if disclosed, would significantly alter the total mix of information available to Smart & Final shareholders. 12

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 13 of 18 PageID #: 13 COUNT I For Violations of Section 14(e) of the Exchange Act Against All Defendants 57. Plaintiff repeats and re-alleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 58. Section 14(e) of the Exchange Act states, in relevant part: It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading . . . in connection with any tender offer or request or invitation for tenders[.] 59. During the relevant period, Defendants, individually and in concert, directly or indirectly, disseminated or approved the false and misleading Solicitation Statement specified above, which failed to disclose material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, in violation of Section 14(e) of the Exchange Act. 60.Each of the Individual Defendants, by virtue of their positions within the Company as officers and/or directors, were aware of materially false and/or misleading and/or omitted information but failed to disclose such information, in violation of Section 14(e) of the Exchange Act. Defendants, by use of the mails and means and instrumentalities of interstate commerce, solicited and/or permitted the use of their names to file and disseminate the Solicitation Statement with respect to the Proposed Transaction. 61. The false and misleading statements and omissions in the Solicitation Statement are material in that a reasonable shareholder would consider them important in deciding whether to tender their shares in connection with the Proposed Transaction. 62. Defendants acted knowingly or with deliberate recklessness in filing or causing the filing of the materially false and misleading Solicitation Statement. 13

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 14 of 18 PageID #: 14 63. By reason of the foregoing, Defendants violated Section 14(e) of the Exchange Act. 64. Because of the false and misleading statements in the Solicitation Statement, Plaintiff is threatened with irreparable harm. COUNT II For Violations of Section 14(d)(4) of the Exchange Act and Rule 14d-9 Promulgated Thereunder Against All Defendants 65. Plaintiff repeats and re-alleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 66. Defendants caused the Solicitation Statement to be issued with the intent to solicit shareholder support for the Proposed Transaction. 67.Section 14(d)(4) of the Exchange Act and SEC Rule 14d-9 promulgated thereunder require full and complete disclosure in connection with tender offers. Specifically, Section 14(d)(4) states, in relevant part: Any solicitation or recommendation to the holders of such a security to accept or reject a tender offer or request or invitation for tenders shall be made in accordance with such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. 68. SEC Rule 14d-9(d), adopted to implement Section 14(d)(4) of the Exchange Act, states, in relevant part: Any solicitation or recommendation to holders of a class of securities referred to in section 14(d)(1) of the Act with respect to a tender offer for such securities shall include the name of the person making such solicitation or recommendation and the information required by Items 1 through 8 of Schedule 14D-9 (§ 240.14d-101) or a fair and adequate summary thereof[.] 69. In accordance with SEC Rule 14d-9, Item 8 of Schedule 14D-9 requires that a company: 14

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 15 of 18 PageID #: 15 Furnish such additional material information, if any, as may be necessary to make the required statements, in light of the circumstances under which they are made, not materially misleading. 70. During the relevant period, Defendants, individually and in concert, directly or indirectly, disseminated or approved the false and misleading Solicitation Statement specified above, which failed to disclose material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, in violation of Section 14(d)(4) of the Exchange Act and SEC Rule 14d-9. 71.Each of the Individual Defendants, by virtue of their positions within the Company as officers and/or directors, were aware of materially false and/or misleading and/or omitted information but failed to disclose such information, in violation of Section 14(d)(4) of the Exchange Act and SEC Rule 14d-9. Defendants, by use of the mails and means and instrumentalities of interstate commerce, solicited and/or permitted the use of their names to file and disseminate the Solicitation Statement with respect to the Proposed Transaction. 72. Defendants acted knowingly or with deliberate recklessness in filing the materially false and misleading Solicitation Statement which omitted material information. 73. The false and misleading statements and omissions in the Solicitation Statement are material in that a reasonable shareholder would consider them important in deciding whether to tender their shares in connection with the Proposed Transaction. COUNT III Violations of Section 20(a) of the Exchange Act Against the Individual Defendants 74. Plaintiff repeats and re-alleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 75. The Individual Defendants acted as control persons of the Company within the meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their senior positions 15

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 16 of 18 PageID #: 16 as officers and/or directors of the Company and participation in and/or awareness of the Company’s operations and/or intimate knowledge of the false statements contained in the Solicitation Statement filed with the SEC, they had the power to and did influence and control, directly or indirectly, the decision-making of the Company, including the content and dissemination of the false and misleading Solicitation Statement. 76. Each of the Individual Defendants was provided with or had unlimited access to copies of the Solicitation Statement and other statements alleged by Plaintiff to be misleading prior to and/or shortly after these statements were issued and had the ability to prevent the issuance of the statements or cause the statements to be corrected. As officers and/or directors of a publicly owned company, the Individual Defendants had a duty to disseminate accurate and truthful information with respect to the Solicitation Statement, and to correct promptly any public statements issued by the Company which were or had become materially false or misleading. 77. In particular, each of the Individual Defendants had direct and supervisory involvement in the operations of the Company, and, therefore, is presumed to have had the power to control or influence the particular transactions giving rise to the securities violations as alleged herein, and exercised the same. The Individual Defendants were provided with or had unlimited access to copies of the Solicitation Statement and had the ability to prevent the issuance of the statements or to cause the statements to be corrected. The Solicitation Statement at issue contains the unanimous recommendation of the Individual Defendants to approve the Proposed Transaction. Thus, the Individual Defendants were directly involved in the making of the Solicitation Statement. 78. In addition, as the Solicitation Statement sets forth at length, and as described herein, the Individual Defendants were involved in negotiating, reviewing, and approving the 16

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 17 of 18 PageID #: 17 Proposed Transaction. The Solicitation Statement purports to describe the various issues and information that they reviewed and considered—descriptions which had input from the Individual Defendants. 79. By virtue of the foregoing, the Individual Defendants have violated Section 20(a) of the Exchange Act. 80. As set forth above, the Individual Defendants had the ability to exercise control over and did control a person or persons who have each violated Sections 14(e), 14(d)(4), and Rule 14d-9 promulgated thereunder, by their acts and omissions as alleged herein. By virtue of their positions as controlling persons, the Individual Defendants are liable pursuant to Section 20(a) of the Exchange Act. As a direct and proximate result of Defendants’ conduct, Company shareholders will be irreparably harmed. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment and relief as follows: A. Preliminarily and permanently enjoining Defendants and all persons acting in concert with them from proceeding with, consummating, or closing the Proposed Transaction and the Tender Offer in connection with the Proposed Transaction, unless and until Defendants disclose and disseminate the material information identified above to the Company’s shareholders; B. In the event Defendants consummate the Proposed Transaction, rescinding it and setting it aside or awarding Plaintiff rescissory damages; C. Declaring that Defendants violated Sections 14(e), 14(d)(4), and 20(a) of the Exchange Act, and Rule 14d-9 promulgated thereunder; D. Awarding Plaintiff reasonable costs and expenses incurred in this action, including counsel fees and expenses and expert fees; and 17

 

Case 1:19-cv-01003-UNA Document 1 Filed 05/30/19 Page 18 of 18 PageID #: 18 E. Granting such other and further relief as the Court may deem just and proper. JURY TRIAL DEMANDED Plaintiff hereby demands a trial by jury. Dated: May 30, 2019 Respectfully submitted, Of Counsel FARNAN LLP Zachary Halper Daniel Sadeh HALPER SADEH LLP 375 Park Avenue, Suite 2607 New York, NY 10152 Telephone: (212) 763-0060 Facsimile: (646) 776-2600 Email: zhalper@halpersadeh.com Email: sadeh@halpersadeh.com /s/ Michael J. Farnan Brian E. Farnan (Bar No. 4089) Michael J. Farnan (Bar No. 5165) 919 N. Market Street, 12th Floor Wilmington DE 19801 Telephone: (302) 777-0300 Facsimile: (302) 777-0301 Email: bfarnan@farnanlaw.com Email: mfarnan@farnanlaw.com Counsel for Plaintiff 18

 

Exhibit (a)(5)(N)

 

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PROPOSED TRANSACTION:

 

Q:                What is the proposed transaction that was announced?

 

A:                 Smart & Final Stores, Inc. (“Smart & Final”) is a public company with shares of stock listed on the New York Stock Exchange (trading symbol “SFS”). We have a majority stockholder that holds approximately 58% of the Company’s stock (investment funds managed by Ares Management Corporation, (“Ares”)) and the remainder of the stock is owned by other institutional and individual investors.

 

The proposed transaction contemplates that an entity (the “purchaser”) owned by investment funds managed by Apollo Global Management, LLC (“Apollo”) will purchase all of the outstanding shares of Smart & Final, including the shares managed by Ares, in a “going private” transaction through a “tender offer” for outstanding shares. After completion of the transaction, Smart & Final will be a private company and will no longer have public financial reporting requirements.  Please see our Solicitation/Recommendation Statement on Schedule 14D-9 filed with the SEC for additional details.

 

Q:                What is the timing of this transaction? When does the sale become final?

 

A:                 Although the exact timing is not certain, we anticipate that the closing will occur by the third quarter of 2019.

 

Q:                Are regulatory approvals required? What other closing conditions are required?

 

A:                 The transaction is subject to customary closing conditions, including expiration or early termination of the Hart-Scott-Rodino antitrust waiting period (early termination was granted on May 3, 2019 in connection with the proposed transaction), review by the Mexican Federal Economic Competition Commission, as well as a minimum number of shares tendered in the offer.

 

Q:                Is the deal conditioned upon further due diligence or financing?

 

A:                 There is no financing condition but we are working with Apollo to arrange new credit facilities to support the transaction and to provide operational flexibility for future business operations. These new credit facilities will also be used to pay off our existing debt.

 

Q:                What should be made of the plaintiff law firms (ones not related to the transaction) that have sent out press releases saying they are “investigating” the merger?

 

A:                 It is Smart & Final’s policy not to discuss any potential or pending litigation. Lawsuits such as these are commonplace following a transaction or announcement, but merely filing a lawsuit does not mean that there is merit to the claim.

 

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Q:                What happens at the end of the tender offer period?

 

A:                 If more than 50% of Smart & Final shares outstanding are tendered and all other conditions of the offer are satisfied or waived, the purchaser will complete the purchase through a merger, and Smart & Final will no longer have public financial reporting requirements. The merger does not require the vote of Smart & Final stockholders.

 

Q:   What happens if the minimum tender condition is not met?

 

A:                 Ares has agreed to tender all of the shares of Smart & Final which it owns in its investment funds pursuant to the terms of a tender and support agreement entered into with the purchaser. The Ares affiliated funds currently own approximately 58% of the shares of Smart & Final, which is greater than the minimum required to complete the tender offer.

 

Q:                Does the transaction require stockholder approval? Will there be a stockholder meeting?

 

A:                 No, the transaction will not require stockholder approval and no stockholder meeting to approve the transaction is planned.

 

Q:                What happens if a stockholder does not tender currently owned shares in the tender offer?

 

A:                 If a majority of shares are tendered and accepted, then remaining shares would be subject to the merger provisions of Delaware corporate law. Generally, this means that the holders of shares which are not tendered will receive the merger price of $6.50 per share, just as if they had tendered.

 

Q:                The transaction price that was announced was $6.50 per share for Smart & Final common stock.  Could there be a higher priced offer?

 

A:                 Under the terms of the offer, the board of directors of Smart & Final is not permitted to actively seek alternate offers but is required to consider any alternate proposals which are received. There is a specified process by which the board would evaluate alternate proposals, and if the board determines to accept a superior offer and terminate the merger agreement or change its recommendation that stockholders tender their shares in the offer, then Ares would not be bound by the terms of the tender and support agreement.

 

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RATIONALE FOR SALE OF SMART & FINAL:

 

Q:                What is the rationale for Smart & Final agreeing to be taken private at this time?

 

A:                 Our industry is in transition in terms of technology adoption, evolving customer shopping behaviors, and a changing competitive landscape. While our operating results have been solid in a very dynamic environment, and we have plans to drive future growth, we believe the purchaser’s offer allows our stockholders to obtain immediate liquidity at a significant premium.  Please see our Solicitation/Recommendation Statement on Schedule 14D-9 filed with the SEC for additional details.

 

Q:                Is this a response to the current retail grocery store competitive environment or Amazon’s potential investments in brick-and-mortar stores?

 

A:                 Our strategic plan takes into account the dynamic environment of our industry and the evolution of consumer behavior. The proposed transaction is not in response to any single factor.

 

Q:                What plans do the new owners have for the Company? How do corporate goals change in this scenario?

 

A:                 We are not able to comment on the purchaser’s or Apollo’s detailed plans at this point.

 

Q:                A press report indicated that we will operate the Smart & Final and Smart Foodservice stores separately in the future. Is that true?

 

A:                 As a matter of policy we don’t comment on press speculation.

 

Q:                What information can you provide about Apollo?

 

A:                 Apollo is a leading global alternative investment manager with offices in New York, Los Angeles, San Diego, Houston, Bethesda, London, Frankfurt, Madrid, Luxembourg, Mumbai, Delhi, Singapore, Hong Kong, Shanghai and Tokyo. Apollo had assets under management of approximately $303 billion as of March 31, 2019 in private equity, credit and real assets funds invested across a core group of nine industries where Apollo has considerable knowledge and resources. For more information about Apollo, please visit www.apollo.com.

 

Q:                Will the existing senior management team continue to run the Company following the merger?

 

A:                 Yes. Apollo has indicated that a key part of their interest in their funds buying Smart & Final is the opportunity to work with a team they know, to build value for the future.

 

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Q:                Will senior management be investing in the Company following the merger?

 

A:                 At this time, no terms of post-closing equity participation in the Company by members of management have been discussed.

 

Q:                Will the Company be closing stores in either banner?

 

A:                 As a matter of policy, we do not comment on the potential for store closures. Management continually evaluates our stores based on financial performance, lease terms, competitive factors, and whether a store relocation could better serve customers. In recent years we have chosen to close a small number of stores, and in most cases the affected associates have been offered employment in other stores.

 

VENDORS AND SUPPLIERS:

 

Q:                Will this have any effect on contracts and payments?

 

A:                 No. This transaction only involves our stock ownership. We are continuing business as usual in both the Smart & Final and Smart Foodservice store banners.

 

Q:                Will a change in ownership affect the relationship between the Company and its suppliers?

 

A:                 No. Our relationships with suppliers and vendors are very important to our mutual business success. The proposed transaction does not contemplate any change in suppliers or current business relationships.

 

Q:                How does this affect the Accounts Payable process?

 

A:                 We take pride in the fact that for almost 150 years we have had a strong reputation for paying suppliers in a fair and timely manner. We plan to continue this practice as usual.

 

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EMPLOYEE ASSOCIATES:

 

Q:                What should we tell customers / family / friends who ask about the sale of Smart & Final?

 

A:                 Our focus is on customer experience. Providing our customers the best place to shop to meet their needs is one of our key strengths, and this will not change as a result of an ownership change. Our primary goal is to ensure that we remain focused on the long-term health, growth and competitiveness of the business for the benefit of our customers, our associates, and the communities we serve.

 

Q:                What should we tell media who ask about the sale of Smart & Final?

 

A:                 Only authorized Smart & Final spokespersons should address the media. Please refer all media, without commenting further, to press@smartandfinal.com.

 

Q:                It really seems like our strategy is heading in the right direction, why would we need to change ownership right now? Is there some underlying weakness we don’t know about?

 

A:                 After careful consideration of a variety of alternatives, including continuing to operate as a public company, our board of directors believes that the sale to the purchaser is in the best interest of the Company and our stockholders.

 

Q:                Is this a good thing for the Smart & Final and Smart Foodservice associates?

 

A:                 A primary goal in this transaction is to ensure we remain focused on the long-term health, growth and competitiveness of our store banners for the benefit of our customers, our associates, and the communities we serve.

 

We are counting on each of you to remain committed to executing on these strategic objectives, creating the best shopping experience for our customers, and, as important, maintaining our strong culture rooted in our core values.

 

Q:                Will there be layoffs as a result of this transaction? Will this have any effect on hiring decisions? Will this affect our relationship with suppliers?

 

A:                 The merger agreement does not contain any mandates regarding staffing levels.

 

Regardless of our ownership structure, we should be focused on maintaining the appropriate level of staffing at our stores and support center to operate in a cost effective manner while meeting the needs of our customers. Our primary goal is to remain focused on the long-term health, growth and competitiveness of the business for the benefit of our customers, our associates, and the communities we serve.

 

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One of our core values is respect, and this will include continuing to communicate with our associates as our business plans become more fully developed.

 

Q:                Will our current benefits carry over to the new owner? What will happen with my benefits?

 

A:                 The terms of the proposed transactions contemplate that, for at least one year following the closing of the merger, we will continue the Company’s benefit programs substantially the same as currently in place. However, the Company always retains the right to modify future benefit programs to meet changing circumstances and the needs of our workforce.

 

Q:                How does this affect my 401(k) or similar plan? I have a participation in the pension plan, is it affected?

 

A:                 As stated above, between now and the closing of the merger, it is business as usual. The merger agreement has no impact on your vested benefits under your 401(k) plan, pension plan or similar plans.  However, the Company always retains the right to modify future benefit programs to meet changing circumstances and the needs of our workforce.

 

Q:                What is the status of merit increases and bonuses?

 

A:                 Merit increases and 2019 performance incentives (bonus program) were approved and communicated earlier in 2019. The proposed transaction contemplates that the 2019 bonus program will remain in place at the same performance targets through the remainder of the 2019 calendar year.

 

Q:                Will I be able to continue to file claims for my Flexible Spending Account (FSA)?

 

A:                 The merger agreement does not provide for any changes to, and is not expected to affect, your existing elections under your FSA.

 

Q:                Can we expect mandated expense cuts as a result of this change?

 

A:                 It has always been the goal of our Company to control growth in operating costs to support our highly price-competitive business, but the merger agreement does not contain any directives regarding cost reductions.

 

Q:                If there are layoffs, will severance packages be offered?

 

A:                 We have a consistent history of treating associates whose positions are eliminated in a fair manner, including payment of appropriate severance and related benefits.

 

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Q:                I own shares of Smart & Final stock that I bought directly, what do I do with them?

 

A:                 Regardless of whether you hold physical “paper” shares of stock or you hold shares in a brokerage account, you should have received notice from Okapi Partners LLC, information agent for the offer,  or your broker, with information on how to tender the shares in the offer at a price of $6.50 per share. There will not be any fees assessed by the Company as part of this process.

 

Our board of directors unanimously recommends that all Smart & Final stockholders, including employees, tender their shares.  Please see the summary term sheet and questions and answers in the “Offer to Purchase for Cash” document from Okapi Partners, for additional details.

 

You or your brokerage firm should receive payment within a few days after closing for any shares validly tendered and not withdrawn, subject to completing a letter of transmittal and providing tax-related information that may be requested from you.

 

Q:                If I own shares of Smart & Final stock, can I sell them now?

 

A:                 Smart & Final will continue to be a public company until the transaction is closed. As such, consistent with Company policy and federal securities laws, disclosure of confidential information or trading in the Company’s stock on the basis of that confidential information is prohibited. Associates interested in selling their Smart & Final stock should consult with their brokerage firm.

 

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COMPANY MANAGEMENT:

 

Q:                How will this affect my ability to hire new associates both during and after the transition?

 

A:                 We have the ability to continue normal hiring, step progression, and promotional practices at levels below the vice president or equivalent level.

 

To the extent you wish to hire for a position at or above the vice president or equivalent level, please consult with Jeff Whynot, senior vice president of human resources.

 

Q:                I have contractual agreements and amendments for services pending. Will I be able to proceed with those?

 

A:                 The merger agreement requires business planning and advance consent by the purchaser of any “material” new contracts or amendments to any “material” existing contracts, as they want to be aware of any commitments that we make today which will impact them as new owners in the future.

 

Please check with Rick Phegley, chief financial officer, regarding any large or material contract, or agreement with a duration of more than one year.

 

Q:                What will happen to my long-term incentive awards like restricted shares, stock options or cash awards?

 

A:                 Restricted stock awards which have vested were converted to “issued” shares on the vesting date. These will be handled like any other share of Smart & Final common stock and can be tendered for the merger consideration of $6.50 per share.  Restricted stock awards which have not vested by the transaction closing date will, at closing, be 50% accelerated and become eligible to receive the merger consideration of $6.50 per share.  The remaining 50% of the merger consideration will continue to vest according to the current terms, and on the future date(s) when vesting occurs, then become eligible to receive the merger consideration of $6.50 per share. Payments of the merger consideration will be in cash, less any applicable withholding taxes, and made through the payroll system by the next eligible payroll date.

 

Stock options which have not vested by the transaction closing date will, at closing, accelerate and become fully vested immediately prior to closing. Your options will then, as of closing, be cancelled and converted into the right to receive an amount equal to the product of (i) the total number of shares subject to your option award, multiplied by (ii) the excess, if any, of (x) $6.50 over (y) the exercise price. If the exercise price of your option is equal to or greater than $6.50, your options do not have economic value and will be cancelled at the closing of the merger without payment. Payments in respect of stock options will be in cash, less any applicable withholding taxes, and made through the payroll system by the next eligible payroll date.

 

Cash awards which have vested prior to the transaction closing date will have been paid on or shortly after the vesting date. Cash awards which have not vested by the transaction

 

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closing date will, at closing, be 50% accelerated and paid in cash. The remaining 50% will continue to vest according to the current terms, and on the future date(s) when vesting occurs, then become eligible to be paid in cash. Payments of cash awards will be made through the payroll system by the next eligible payroll date, less any applicable withholding taxes.

 

Q:                Will individual associates who hold unvested restricted stock, stock options, or cash incentive interests be able to “roll over” their interests in the transaction?

 

A:                 There is no rollover or co-investment program contemplated for individual associates at this time.

 

Q:                Will a new program be developed to give management-level associates the opportunity to invest in the Company post-transaction?

 

A:                 There have been no discussions regarding a co-investment program for individual associates.

 

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Additional Information and Where to Find It

 

This communication is for informational purposes only and is neither a recommendation, an offer to purchase nor a solicitation of an offer to sell shares, nor is it a substitute for the tender offer materials that the Apollo Funds and Purchaser have filed with the U.S. Securities and Exchange Commission (the “SEC”). The Apollo Funds and Purchaser have filed tender offer materials on Schedule TO, and Smart & Final Stores, Inc. has filed a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC with respect to the tender offer. THE TENDER OFFER MATERIALS (INCLUDING THE OFFER TO PURCHASE, RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT CONTAIN IMPORTANT INFORMATION. HOLDERS OF SHARES OF SMART & FINAL STORES, INC. ARE URGED TO READ THESE DOCUMENTS CAREFULLY IN THEIR ENTIRETY, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AS WELL AS ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC BECAUSE THEY CONTAIN IMPORTANT INFORMATION THAT HOLDERS OF SMART & FINAL STORES, INC. SECURITIES SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SECURITIES.

 

The Offer to Purchase, the related Letter of Transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, are available to all holders of shares of Smart & Final Stores, Inc. at no expense to them. The tender offer materials, the Solicitation/Recommendation Statement and other related documents are available for free at the SEC’s web site at www.sec.gov. Investors and securityholders may obtain a free copy of the Solicitation/Recommendation Statement and other related documents that Smart & Final Stores, Inc. files with the SEC, free of charge, from Smart & Final Stores, Inc. at investors@smartandfinal.com or by directing a request to Investor Relations, at 310.829.5400 or investors@smartandfinal.com.

 

Forward-Looking Statements

 

Certain statements in this communication are forward-looking statements, including, without limitation, the statements made concerning the pending acquisition of the Company by Parent and Purchaser. In some cases, you can identify forward-looking statements by the following words: “may,” “will,” “could,” “would,” “should,” “expect,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “project,” “aim,” “potential,” “continue,” “ongoing,” “goal,” “can,” “seek,” “target” or the negative of these terms or other similar expressions, although not all forward-looking statements contain these words. These statements reflect the Company’s current views concerning future events, including the planned completion of the tender offer and the merger and related transactions, including, for example, the timing of the completion of the merger and the potential benefits of the merger, reflect the current analysis of existing information, and are based on a number of assumptions that could ultimately prove inaccurate. As a general matter, forward-looking statements are those focused upon anticipated events or trends, expectations, and beliefs relating to matters that are not historical in nature. Such forward-looking statements are subject to uncertainties and factors relating to the Company’s operations and business environment, all of which are difficult to predict and many of which are beyond the control of the Company. Among others, the following factors could cause actual results to differ materially from those set forth in the forward-looking statements: (i) uncertainties as to the timing of the tender offer and the merger; (ii) uncertainties as to how many Company stockholders will tender their shares in the tender offer; (iii) the possibility that competing offers will be made; (iv) the possibility that various closing conditions for the transaction may not be satisfied or waived; (v) the risk that the merger agreement may be terminated in circumstances requiring the Company to pay a termination fee, (vi) risks related to obtaining the requisite consents to the tender offer and the merger, including, without limitation, the risk that a regulatory approval that may be required for the proposed transaction, including under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) (early termination was granted on May 3, 2019 in connection with the proposed transaction) and by the Mexican Federal Economic Competition Commission or the Mexican Federal Institute of Telecommunications (as applicable), is delayed, is not obtained, or is obtained subject to conditions that are not anticipated; (vii) the possibility that the transaction may not be timely completed, if at all; (viii) the risk that, prior to the completion of the transaction, if at all, the Company’s business and its relationships with employees, collaborators, vendors and other business partners could experience significant disruption due to transaction-related uncertainty; (ix) the risk that stockholder litigation in connection with the tender offer or the merger may result in significant costs of defense, indemnification and liability; and (x) the risks and uncertainties pertaining to the Company’s business, including those detailed under “Risk Factors” and elsewhere in the Company’s public periodic filings with the SEC, as well as the tender offer materials filed by Purchaser and Parent and the Solicitation/Recommendation Statement filed by the Company in connection with

 

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the tender offer. Other factors that could cause actual results to differ materially include those set forth in the Company’s SEC reports, including, without limitation, the risks described in the Company’s Annual Report on Form 10-K for its fiscal year ended December 30, 2018, and in the Company’s Quarterly Report on Form 10-Q for the period ended March 24, 2019, which are on file with the SEC. The reader is cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. All forward-looking statements are qualified in their entirety by this cautionary statement and the Company undertakes no obligation to revise or update this report to reflect events or circumstances after the date hereof, except as required by law.

 

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