Business Corporation Act (MBCA), no Company shareholder vote will be required to complete the Merger. The Company does not expect there to be a significant period of time
between the completion of the Offer and the completion of the Merger. At the effective time of the Merger (the Effective Time), which, under the terms of the Merger Agreement, will take place as soon as practicable following
consummation of the Offer, and in any event, no later than one business day thereafter, all remaining outstanding Shares not tendered in the Offer (other than Shares held by (i) the Company as treasury stock, owned by Merger Sub or Parent (or
their respective wholly-owned subsidiaries), or that were irrevocably accepted for purchase by Merger Sub in the Offer, which Shares shall be automatically cancelled and shall cease to exist, or (ii) shareholders who are entitled to dissent and
properly assert dissenters rights in accordance with, and in compliance in all respects with the MBCA in connection with the Merger) will be cancelled and automatically converted into the right to receive an amount equal to the Offer Price
(the Merger Consideration), without interest and less any applicable taxes required to be withheld. See Item 3. Past Contacts, Transactions, Negotiations and Agreements Arrangements between the Company and its
Executive Officers, Directors, and Affiliates Effect of the Merger on Company Shares and Equity-Based Incentive Awards below for a description of the treatment of Company stock options, Company time-based and performance-based
restricted stock awards, and Company performance-based restricted stock unit awards.
Merger Sub commenced (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the Exchange Act)) the Offer on August 24, 2022. Subject to the terms and conditions of the Merger Agreement and the
Offer, the Offer is initially scheduled to expire at one minute after 11:59 p.m. (12:00 midnight), New York City time, on September 21, 2022.
The foregoing summary of the Offer, the Merger and the Merger Agreement is qualified in its entirety by the descriptions contained in the
Offer to Purchase and the Letter of Transmittal as well as the full text of the Merger Agreement. Copies of the Merger Agreement, the Offer to Purchase, and the Letter of Transmittal are filed as Exhibits (e)(1), (a)(1)(A) and (a)(1)(B),
respectively, to this Schedule 14D-9 and are incorporated herein by reference.
As set forth in
the Schedule TO, the principal executive offices of Parent and Merger Sub are located at 9311 East Via de Ventura, Scottsdale, Arizona 85258.
The information relating to the Offer, including the Offer to Purchase, the Letter of Transmittal, and related documents (including, without
limitation, the Merger Agreement) and this Schedule 14D-9 (including certain referenced documents), can be obtained without charge from the SECs website at www.sec.gov.
Item 3. Past Contacts, Transactions, Negotiations and Agreements.
Except as set forth in this Schedule 14D-9, as of the date hereof, to the knowledge of the Company,
there are no material agreements, arrangements, or understandings or any actual or potential conflicts of interest between the Company or its affiliates, on the one hand, and (i) its executive officers, directors, or affiliates, or
(ii) Parent or Merger Sub, or their respective executive officers, directors, or affiliates (including MTY), on the other hand.
In
connection with the Companys receipt of a written non-binding proposal from MTY for the acquisition by MTY, or an affiliate of MTY, of all of the issued and outstanding Shares, the Board of
Directors of the Company (the Board) formed a special committee comprised Charles Davidson, Peter Haeg, Rachel Maga, and Bryan Wolff (the Special Committee), each of whom is a disinterested director of the
Company (within the meaning of Section 302A.673 of the MBCA), to consider and take action, on behalf of the Company, with respect to such proposal, to review and direct negotiations concerning the definitive agreements to be entered into in
connection with the proposed transaction including the Merger Agreement, and to make a recommendation to the Board with respect thereto.
The Special Committee and the Board were aware of the contracts, agreements, arrangements or understandings, and any actual or potential
conflicts of interest, described below in this Item 3 and considered
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