SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
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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¨
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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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¨
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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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¨
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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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Item
1.01 Entry Into A Material Definitive Agreement.
On May 9,
2010, Rubio’s Restaurants, Inc., a Delaware corporation (“Rubio’s”), entered
into an Agreement and Plan of Merger (the “Merger Agreement”) with MRRC Merger
Co., a Delaware corporation (“Merger Sub”), and MRRC Hold Co., a Delaware
corporation (“Parent”). Parent is wholly owned by Mill Road Capital, L.P. (“Mill
Road”). Pursuant to the Merger Agreement, Parent will acquire Rubio’s
through the merger of Merger Sub with and into Rubio’s (the
“Merger”).
At the
effective time of the Merger, each outstanding share of Rubio’s common stock
(other than shares owned by Parent and dissenting shares) will be converted into
the right to receive $8.70 in cash.
Each
option to purchase Rubio’s common stock will be replaced with a cash incentive
program under which each holder of vested options having an exercise price less
than $8.70 will receive an amount in cash per share subject to such options
equal to the difference between $8.70 and such exercise price, and each holder
of unvested options will be entitled to receive a series of payments in cash,
equal to the difference between $8.70 and the exercise price of such options,
provided that the option holder satisfies the vesting conditions of such options
on the applicable vesting date, all subject to applicable
withholding. All unvested restricted stock units outstanding as of
the effective time of the Merger will be converted into the right to receive an
amount of cash equal to $8.70 per share, provided the holder of such restricted
stock units satisfies the vesting conditions of such restricted stock units as
of the Merger.
On May 9,
2010, the special committee of the board of directors of Rubio’s recommended the
approval of the Merger and the Merger Agreement to Rubio’s board of directors
(the “Board”). The Board unanimously approved the Merger and the Merger
Agreement at a special meeting on May 9, 2010 and directed that the Merger
Agreement be submitted to Rubio’s stockholders for approval.
The
Merger is expected to close during the third quarter of 2010. The
Merger is subject to the approval of Rubio’s stockholders and other customary
conditions to closing, including the early termination or expiration of the
waiting period applicable to the Merger under the Hart-Scott-Rodino
Act.
The
Merger Agreement provides that Rubio’s is restricted from soliciting other
proposals from a different parties provided that Rubio’s can take certain
actions related to superior proposals, subject to the approval of the Board as
specified in the Merger Agreement.
The
Merger Agreement contains limited termination rights as provided in the Merger
Agreement. Upon the termination of the Merger Agreement under certain
circumstances specified in the Merger Agreement, Rubio’s may be required to pay
Parent a termination fee of $3.365 million. Either party will have a
right to terminate the Merger Agreement if the Merger is not closed on or prior
to September 15, 2010.
The
Merger Agreement also includes other representations, warranties, covenants and
conditions that are customary for transactions of this type. The
Merger is not subject to a financing condition.
A copy of
the Merger Agreement is attached hereto as Exhibit 2.1 and is incorporated
herein by reference. The foregoing summary of the Merger Agreement is
not intended to be complete and is qualified in its entirety by the full text of
the Merger Agreement.
In
connection with the execution of the Merger Agreement, Mill Road provided
Rubio’s with a guarantee, a copy of which is attached hereto as Exhibit 10.1 and
is incorporated herein by reference.
As part
of the transaction, Ralph Rubio and Dan Pittard have entered into offer letters
with Parent related to their continued employment following the closing of the
Merger, and Ralph Rubio has agreed to co-invest a portion of his Rubio’s common
stock into the Parent on the same terms as Mill Road’s investment. In
addition, Dan Pittard and other members of management will have an opportunity
to co-invest within 30 days following the closing of the Merger. Each of Messrs.
Pittard and Rubio will be appointed to the Board after the closing of the
Merger.
Concurrently
with the execution of the Merger Agreement, each of Ralph Rubio, chairman of
Rubio’s, Dan Pittard, Chief Executive Officer of Rubio’s, and Rosewood Capital,
L.P., who collectively hold shares representing approximately 24% of the voting
power of Rubio’s common stock, entered into voting agreements with Parent under
which they have agreed to vote in favor of the Merger.
Copies of
the Voting Agreements are attached hereto as Exhibits 99.1 and 99.2,
respectively, and incorporated by reference herein. The foregoing
summary of the Voting Agreements is not intended to be complete and is qualified
in its entirety by the full text of the Voting Agreements.
Each of
Ralph Rubio, indirectly through the Ralph Rubio and Dione Rubio Family Trust,
and Rosewood Capital, L.P. are parties to an Amended and Restated Investors’
Rights Agreements, dated as of November 19, 1997, as amended (the “Investors’
Rights Agreement”) whereby Rubio’s granted each investor certain registration
rights. In connection with the Merger, each investor has entered into
an Investors’ Rights Agreement Standstill and Termination Agreement, dated as of
May 9, 2010 (the “Standstill and Termination Agreements”), pursuant to which the
investors have agreed (i) not to exercise any demand registration rights as
provided for in the Investors’ Rights Agreement; and (ii) the Investors’ Rights
Agreement will terminate contingent upon and as of the effective time of the
Merger.
Copies of
the Standstill and Termination Agreements are attached hereto as Exhibits 10.1
and 10.2, respectively, and incorporated by reference herein. The
foregoing summary of the Standstill and Termination Agreements is not intended
to be complete and is qualified in its entirety by the full text of the
Standstill and Termination Agreements.
The
Merger Agreement has been provided solely to inform investors of its
terms. The representations, warranties and covenants contained in the
Merger Agreement were made only for purposes of such agreement and as of
specific dates, were made solely for the benefit of the parties to the Merger
Agreement and may be intended not as statements of fact, but rather as a way of
allocating the risk to one of the parties if those statements prove to be
inaccurate. In addition, such representations, warranties and
covenants may have been qualified by certain disclosures not reflected in the
text of the Merger Agreement, and may apply standards of materiality in a way
that is different from what may be viewed as material by shareholders of, or
other investors in, Rubio’s. Investors are not third-party
beneficiaries under the Merger Agreement and should not rely on the
representations, warranties and covenants or any descriptions thereof as
characterizations of the actual state of facts or condition of Rubio’s, Parent,
Merger Sub, or any of their respective subsidiaries or affiliates.
Important
Additional Information
All parties desiring details regarding
the transaction are urged to review the Merger Agreement. In connection with the
proposed transaction, Rubio’s will file with the Securities and Exchange
Commission, or 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
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,
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 filings with the SEC, including its most recent
annual report on Form 10-K, as amended. Many of the factors that will
determine the consummation 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.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
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Exhibit
No.
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Description
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2.1
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Agreement
and Plan of Merger, dated as of May 9, 2010, by and among Rubio’s
Restaurants, Inc., MRRC Merger Co. and MRRC Hold Co.
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10.1
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Sponsor
Guarantee, dated as of May 9, 2010, by Mill Road L.P. in favor of Rubio’s
Restaurants, Inc.
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10.2
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Investors’
Rights Agreement Standstill and Termination Agreement, dated as of May 9,
2010, by Rubio’s Restaurants, Inc. and the Ralph Rubio and Dione Rubio
Family Trust.
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10.3
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Investors’
Rights Agreement Standstill and Termination Agreement, dated as of May 9,
2010, by Rosewood Capital, L.P.
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99.1
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Voting
Agreement, dated as of May 9, 2010, entered into by and between MRRC Hold
Co. and, individually and separately, each of Ralph Rubio and Dan
Pittard
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99.2
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Voting
Agreement, dated as of May 9, 2010, entered into by and between MRRC Hold
Co. and Rosewood Capital, L.P.
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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
RUBIO’S
RESTAURANTS, INC.
Frank
Henigman
Senior
Vice President and
Chief
Financial Officer
EXHIBIT
INDEX
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Exhibit
No.
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Description
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2.1
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Agreement
and Plan of Merger, dated as of May 9, 2010, by and among Rubio’s
Restaurants, Inc., MRRC Merger Co. and MRRC Hold Co.
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10.1
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Sponsor
Guarantee, dated as of May 9, 2010, by Mill Road L.P. in favor of Rubio’s
Restaurants, Inc.
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10.2
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Investors’
Rights Agreement Standstill and Termination Agreement, dated as of May 9,
2010, by Rubio’s Restaurants, Inc. and the Ralph Rubio and Dione Rubio
Family Trust.
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10.3
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Investors’
Rights Agreement Standstill and Termination Agreement, dated as of May 9,
2010, by Rosewood Capital, L.P.
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99.1
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Voting
Agreement, dated as of May 9, 2010, entered into by and between MRRC Hold
Co. and, individually and separately, each of Ralph Rubio and Dan
Pittard
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99.2
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Voting
Agreement, dated as of May 9, 2010, entered into by and between MRRC Hold
Co. and Rosewood Capital, L.P.
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