SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K/A
Current
Report Pursuant to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of Report (Date of Earliest
Event Reported):
May 9, 2010
RUBIO’S
RESTAURANTS, INC.
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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000-26125
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33-0100303
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(State
of Incorporation)
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(Commission
File Number)
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(I.R.S.
Employer Identification No.)
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1902
Wright Place, Suite 300, Carlsbad, California
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92008
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant's telephone number,
including area code:
(760) 929-8226
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (
see
General
Instruction A.2. below):
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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x
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Explanatory Note
This amendment is being filed to correct Item
9.01 of the Current Report on Form 8-K filed by Rubio
’
s Restaurants,
Inc. on May 10, 2010 to correct an immaterial error in the reported Average
Shares Outstanding, both basic and diluted, in the Condensed Consolidated
Statements of Operations for the thirteen week period ended March 28, 2010.
There is no change in the EPS, both basic and diluted, reported for this same
period. A revised Exhibit 99.1 is included in this Form 8-K/A.
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Item
2.02
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Results
of Operations and Financial
Condition.
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On May
10, 2010, the Company issued a press release announcing its financial results
for the first quarter of fiscal 2010, ended March 28, 2010. A copy of
the press release is furnished herewith as Exhibit 99.1.
In
accordance with General Instruction B.2 of Form 8-K, this information, including
the financial results information included in Exhibit 99.1, shall not be deemed
“filed” for the purposes of Section 18 of the Securities Exchange Act of 1934 or
otherwise subject to the liabilities of that section, nor shall such information
and the financial information contained in such exhibit be deemed incorporated
by reference into any filing under the Securities Act of 1933 or the Securities
Exchange Act of 1934, except as shall be expressly set forth by specific
reference in such a filing.
The
Company announced today a definitive merger agreement, dated May 9, 2010, under
which an entity controlled by Mill Road Capital, L.P., a Connecticut-based
private investment firm, will acquire all of the Company’s outstanding shares in
a cash merger transaction. Pursuant to the terms of the definitive merger
agreement, the outstanding shares of common stock of the Company will be
acquired for $8.70 per share. The aggregate transaction value is approximately
$91 million.
A copy of
a press release issued by the Company on May 10, 2010 concerning the foregoing
is attached as Exhibit 99.1 hereto.
Important
Additional Information
All parties desiring details regarding
the transaction are urged to review the definitive agreement when it is
available on the SEC’s website at
http://www.sec.gov
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In connection with the proposed transaction, Rubio’s will file with the SEC a
proxy statement, and Rubio’s plans to file with the SEC other documents
regarding the proposed transaction.
INVESTORS AND SECURITY HOLDERS ARE
ADVISED TO READ THE PROXY STATEMENT AND OTHER FILED DOCUMENTS CAREFULLY WHEN
THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE
PROPOSED TRANSACTION
. Shareholders will be able to obtain a
free-of-charge copy of the proxy statement and other relevant documents (when
available) filed with the SEC from the SEC’s website at
http://www.sec.gov
.
Shareholders will also be able to obtain a free-of-charge copy of the proxy
statement and other relevant documents (when available) by directing a request
by mail or telephone to Rubio’s Restaurants, Inc., Attention: Frank
Henigman, 1902 Wright Place, Suite 300, Carlsbad, CA 92008, or from Rubio’s
website,
http://www.rubios.com
. Rubio’s
and certain of its directors, executive officers and other members of management
and employees may, under the rules of the SEC, be deemed to be “participants” in
the solicitation of proxies from stockholders of Rubio’s in favor of the
proposed merger. Information regarding Rubio’s directors and executive officers
is contained in Rubio’s Form 10-K filed with the SEC on March 26, 2010, as
amended by the Form 10-K/A filed with the SEC on April 26, 2010. Additional
information regarding the interests of such potential participants will be
included in the proxy statement and the other relevant documents filed with the
SEC (when available).
Forward-Looking
Statements
This document contains certain
forward-looking statements about Rubio’s that are subject to risks and
uncertainties that could cause actual results to differ materially from those
expressed or implied in the forward-looking statements. These factors include,
but are not limited to, (1) the occurrence of any event, change or other
circumstances that could give rise to the termination of the merger agreement;
(2) the inability to complete the merger due to the failure to satisfy the other
conditions to completion of the merger; (3) the risk that the
proposed transaction disrupts current plans and operations and the
potential difficulties in employee retention as a result of the merger; and (4)
other risks that are set forth in the “Risk Factors,” “Legal Proceedings” and
“Management Discussion and Analysis of Results of Operations and Financial
Condition” sections of Rubio’s Securities and Exchange, or SEC,
filings. Many of the factors that will determine the outcome of the
merger are beyond Rubio’s ability to control or predict. Rubio’s undertakes no
obligation to revise or update any forward-looking statements, or to make any
other forward-looking statements, whether as a result of new information, future
events or otherwise.
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Item
9.01
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Financial
Statements and Exhibits.
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Exhibit
No.
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Description
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99.1
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Press
Release, dated May 10, 2010.
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
Dated: May
10, 2010
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RUBIO’S
RESTAURANTS, INC.
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By:
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/s/ Frank Henigman
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Frank
Henigman, Senior Vice President and
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Chief
Financial Officer
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EXHIBIT
INDEX
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Exhibit
No.
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Description
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99.1
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Press
Release, dated May 10, 2010.
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