Attached files
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EX-3.3 - RUBIOS RESTAURANTS INC | v195180_ex3-3.htm |
EX-3.1 - RUBIOS RESTAURANTS INC | v195180_ex3-1.htm |
EX-3.2 - RUBIOS RESTAURANTS INC | v195180_ex3-2.htm |
EX-99.1 - RUBIOS RESTAURANTS INC | v195180_ex99-1.htm |
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): August 24, 2010
RUBIO’S
RESTAURANTS, INC.
(Exact
Name of Registrant as Specified in Charter)
Delaware
|
000-26125
|
33-0100303
|
(State
of Incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer Identification
No.)
|
1902
Wright Place, Suite 300, Carlsbad, California
|
92008
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
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):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Introduction
On August
24, 2010, MRRC Hold Co., a Delaware corporation (“Parent”), completed its
acquisition of Rubio’s Restaurants, Inc., a Delaware corporation (“Rubio’s”),
pursuant to the terms of that certain Agreement and Plan of Merger dated as of
May 9, 2010, as amended by the Amendment to Agreement and Plan of Merger dated
as of July 18, 2010 (as amended, the “Merger Agreement”), by and among Rubio’s,
Parent and MRRC Merger Co., a Delaware corporation and wholly-owned subsidiary
of Parent (“Merger Sub”). To consummate the acquisition, Merger Sub
was merged with and into Rubio’s, with Rubio’s continuing as the surviving
corporation and a wholly-owned subsidiary of Parent (the
“Merger”). Pursuant to the Merger Agreement, as of the effective time
of the Merger, each share of common stock, par value $0.001 per share, of
Rubio’s (“Common Stock”) issued and outstanding immediately prior to the
effective time of the Merger (other than shares of Common Stock held in the
treasury of Rubio’s or held by Merger Sub, Parent or any wholly-owned subsidiary
of Parent or of Rubio’s) was converted into the right to receive $8.70 in cash,
without interest (the “Merger Consideration”).
As a
result of the Merger, all of Rubio’s issued and outstanding common stock is
owned by Parent. Parent is majority-owned by Mill Road Capital, L.P.
(“Mill Road”). Ralph Rubio and certain other investors affiliated
with the lenders under the credit facility described below own a minority stake
in Parent and approximately 10% of Parent’s capital stock will be reserved for
an equity incentive plan. In addition, certain members of Rubio’s
management also have the opportunity to co-invest in Parent at the same price as
Mill Road. The aggregate cash consideration payable to former Rubio’s
stockholders (other than Mill Road and its affiliates) is approximately
$82,019,293.50. In addition, each option to purchase shares of
Rubio’s common stock that remains outstanding and unexercised at the effective
time of the Merger, whether vested or unvested, will be converted into a right
to receive cash payment. At the effective time of the Merger, each
Rubio’s restricted stock unit outstanding immediately prior to the effective
time of the Merger will be converted into a right to receive cash
payment. Parent obtained the consideration for the Merger from a
combination of equity investments by Mill Road and Parent’s other stockholders
as well as approximately $41,120,000 of loan proceeds under the credit facility
described below.
Item
1.01
|
Entry
into a Material Definitive
Agreement.
|
The
information set forth in Item 2.03 below is incorporated herein by
reference.
Item
2.01
|
Completion
of Acquisition or Disposition of
Assets.
|
The
information set forth in the Introduction above is incorporated herein by
reference.
Item
2.03
|
Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant.
|
In
connection with the Merger, on August 24, 2010, Parent, Merger Sub, Rubio’s and
its subsidiaries entered into a secured Credit Agreement (the “Credit
Agreement”) with certain lenders and GCI Capital Markets LLC, as administrative
agent and sole bookrunner, and certain related security agreements.
The
Credit Agreement provides for a term loan in the aggregate amount of $41,120,000
and a $5,000,000 revolving line of credit; the revolving line of credit includes
a sublimit for the issuance of letters of credit.
In
connection with the consummation of the Merger and the closing of the Credit
Agreement on August 24, 2010, Rubio’s (as successor by merger with Merger Sub)
borrowed the entire $41,120,000 term loan in order to fund in part the purchases
of shares of Rubio’s common stock pursuant to the Merger Agreement and other
payments in connection with the Merger. No advances under the
revolving line of credit were made.
The term
loan must be repaid in nineteen consecutive quarterly installments, beginning on
September 30, 2010 and continuing through March 31, 2015, and a final
installment on June 30, 2015 in an amount equal to the then outstanding
principal balance of the term loan. Rubio’s may repay any future
borrowings under the revolving line of credit at any time, but in no event later
than June 30, 2015. Rubio’s may voluntarily prepay the term
loans or terminate the revolving line of credit at any time, subject to certain
thresholds and conditions.
Rubio’s
is required to make mandatory prepayments of the term loan and the revolving
credit loans in various amounts under the Credit Agreement if it makes certain
sales of assets outside above certain thresholds, if it suffers certain property
loss events above certain thresholds, if it issues certain types of equity, if
it incurs certain debt, or if it has excess cash flow (as defined in the Credit
Agreement).
Amounts
repaid under the revolving credit facility may be reborrowed, subject to
continued compliance with the Credit Agreement. No amount of the term
loan that is repaid may be reborrowed.
The Loans
bear interest at a rate per annum of, at Rubio’s option, either (i) the
Index Rate, as defined in the Credit Agreement, plus 5.75%, or (ii) the
LIBOR Rate, as defined in the Credit Agreement, plus 7.00%. Rubio’s
is obligated to pay fees on the unused portion of its revolving line of credit
at a rate per annum of 0.75%.
Under the
Credit Agreement, Rubio’s must comply with various customary financial and
non-financial covenants. The primary financial covenants under the Credit
Agreement consist of a maximum total leverage ratio, a minimum fixed charge
coverage ratio, a maximum lease adjusted leverage ratio, a minimum EBITDA
requirement and a limit on capital expenditures. The primary non-financial
covenants under the Credit Agreement limit Rubio’s ability to pay dividends or
other distributions on its capital stock, to repurchase its capital stock, to
conduct mergers or acquisitions, to sell assets, to make investments and loans,
to incur future indebtedness, to place liens on assets, to prepay other
indebtedness, and to alter its capital structure.
The
lenders under the Credit Agreement are entitled to accelerate repayment of the
Loans upon the occurrence of any of various customary events of default, which
include, among other events, the following (which are subject, in some cases, to
certain grace periods): failure to pay when due any principal, interest or other
amounts in respect of the loans, breach of any of Rubio’s covenants or
representations under the loan documents, default under any other of Rubio’s or
its subsidiaries’ significant indebtedness agreements, a bankruptcy or
insolvency event with respect to Rubio’s or any of its material subsidiaries, a
significant unsatisfied judgment against Rubio’s or any of its material
subsidiaries, or a change of control.
Borrowings
under the Credit Agreement are guaranteed by Parent and Rubio’s subsidiaries and
are secured by substantially all of the assets of Rubio’s and its
subsidiaries.
Item
3.01
|
Notice
of Delisting or Failure to Satisfy a Continued Listing Rule or Standard;
Transfer of Listing.
|
As a
result of the Merger, trading of Rubio’s Common Stock was suspended as of the
close of trading on August 24, 2010. On August 24, 2010, Rubio’s
notified the Financial Industry Regulatory Authority (“FINRA”) and The Nasdaq
Global Market (“Nasdaq”) of the effectiveness of the Merger and its intent to
remove its Common Stock from Nasdaq, where such stock traded under the symbol
“RUBO.” On August 24, 2010, Nasdaq filed a Form 25 with the
Securities and Exchange Commission (“SEC”) on behalf of Rubio’s to suspend
Rubio’s duty to file reports under Section 13(a) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), and to delist and withdraw the Common
Stock from registration under Section 12(b) of the Exchange
Act. Rubio’s intends to file a Form 15 with the SEC on or about
September 3, 2010 to suspend its duty to file reports under Section 15(d) of the
Exchange Act and to deregister its Common Stock under Section 12(g) of the
Exchange Act. The last day of trading of Rubio’s Common Stock on
Nasdaq was August 24, 2010.
Item
3.03
|
Material
Modification to Rights of Security
Holders.
|
As
described in the Introduction above, as a result of the Merger, each share of
Rubio’s Common Stock issued and outstanding immediately prior to the effective
time of the Merger (other than shares of Common Stock held in the treasury of
Rubio’s or held by Merger Sub, Parent or any wholly-owned subsidiary of Parent
or of Rubio’s) was converted into the right to receive the Merger
Consideration.
At the
effective time of the Merger, Rubio’s stockholders immediately prior to the
effective time (other than Parent and its stockholders) ceased to have any
rights as stockholders of Rubio’s (other than their right to receive Merger
Consideration) and, accordingly, no longer have any interest in Rubio’s future
earnings and growth.
The
information set forth in the Introduction and Items 2.01 and 3.01 is
incorporated herein by reference.
Item
5.01
|
Changes
in Control of Registrant.
|
As
described in the Introduction above, on August 24, 2010, Parent completed its
acquisition of Rubio’s, pursuant to the terms of the Merger
Agreement. To consummate the acquisition, Merger Sub was merged with
and into Rubio’s, with Rubio’s surviving the Merger as a wholly-owned subsidiary
of Parent.
Pursuant
to the Merger Agreement, as of the effective time of the Merger, each share of
Rubio’s Common Stock issued and outstanding immediately prior to the effective
time of the Merger (other than shares of Common Stock held in the treasury of
Rubio’s or held by Merger Sub, Parent or any wholly-owned subsidiary of Parent
or of Rubio’s) was converted into the right to receive the Merger
Consideration. The aggregate cash consideration payable to such
former Rubio’s stockholders is approximately $82,019,293.50. In
addition, each option to purchase shares of Rubio’s common stock that remains
outstanding and unexercised at the effective time of the Merger, whether vested
or unvested, will be converted into a right to receive cash
payment. At the effective time of the Merger, each Rubio’s restricted
stock unit outstanding immediately prior to the effective time of the Merger
will be converted into a right to receive cash payment. Parent
obtained the consideration for the Merger from a combination of equity
investments by Mill Road and Parent’s other stockholders as well as
approximately $41,120,000 of loan proceeds under the credit facility described
above.
The
information set forth in the Introduction and Item 2.01 is incorporated by
reference.
On August
24, 2010, Rubio’s issued a press release announcing the consummation of the
Merger. A copy of this press release is attached hereto as Exhibit
99.1 and incorporated by reference into this Item 5.01.
Item
5.02
|
Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangement of Certain
Officers.
|
Pursuant
to the Merger Agreement, effective as of the closing of the Merger, Ralph Rubio,
Kyle Anderson, Craig Andrews, William Bensyl, Loren Pannier, Daniel Pittard and
Timothy J. Ryan ceased serving as members of Rubio’s board of directors and all
committees thereof.
Pursuant
to the Merger Agreement, effective as of the closing of the Merger, Scott P.
Scharfman became the sole director of Rubio’s. On or about August 26,
2010, Ralph Rubio, Daniel Pittard, Thomas E. Lynch and Charles M. B. Goldman
were elected as additional members of Rubio’s board of
directors. Each of Ralph Rubio and Daniel Pittard were elected as a
new member of Rubio’s board of directors pursuant to the terms of his offer
letter from Parent dated May 9, 2010 regarding employment with
Rubio’s.
Item
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
|
Pursuant
to the Merger Agreement, at the effective time of the Merger, the certificate of
incorporation of the surviving corporation was amended, and such amended
certificate of incorporation became the certificate of incorporation of Rubio’s
as the surviving corporation of the Merger. A copy of this
Certificate of Incorporation of Rubio’s is attached hereto as Exhibit 3.1 and is
incorporated herein by reference.
On August
24, 2010, following the effective time of the Merger, such Certificate of
Incorporation of Rubio’s was amended and restated to increase the number of
authorized shares of Rubio’s to 1,100 shares of common stock, par value $0.01
per share, and to create two classes of such common stock and set forth the
powers, privileges and rights in respect of each such class of common
stock. A copy of this Amended and Restated Certificate of
Incorporation of Rubio’s is attached hereto as Exhibit 3.2 and is incorporated
herein by reference.
Pursuant
to the Merger Agreement, at the effective time of the Merger, the bylaws of
Merger Sub became the bylaws of the surviving corporation. A copy of
these bylaws is attached hereto as Exhibit 3.3 and is incorporated herein by
reference.
Item
8.01
|
Other
Events.
|
The
information set forth in the press release issued by Rubio’s, dated August 24,
2010, and attached hereto as Exhibit 99.1 is incorporated herein by
reference.
Item
9.01
|
Financial
Statements and Exhibits.
|
(d) Exhibits
Exhibit
No.
|
Description
|
3.1
|
Certificate
of Incorporation of Rubio’s Restaurants, Inc.
|
3.2
|
Amended
and Restated Certificate of Incorporation of Rubio’s Restaurants,
Inc.
|
3.3
|
Bylaws
of Rubio’s Restaurants, Inc.
|
99.1
|
Press
release, dated August 24,
2010.
|
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: August
30, 2010
RUBIO’S RESTAURANTS, INC. | ||
|
By:
|
/s/
Frank
Henigman
|
Frank
Henigman, Senior Vice President and
|
||
Chief
Financial Officer
|
EXHIBIT
INDEX
Exhibit
No.
|
Description
|
3.1
|
Certificate
of Incorporation of Rubio’s Restaurants, Inc.
|
3.2
|
Amended
and Restated Certificate of Incorporation of Rubio’s Restaurants,
Inc.
|
3.3
|
Bylaws
of Rubio’s Restaurants, Inc.
|
99.1
|
Press
release, dated August 24,
2010.
|