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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Habit Restaurants Inc | NASDAQ:HABT | NASDAQ | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 13.98 | 13.97 | 14.00 | 0 | 01:00:00 |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
March 9, 2020
Date of report (date of earliest event reported)
The Habit Restaurants, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 001-36749 | 36-4791171 | ||
(State or Other Jurisdiction of Incorporation or Organization) |
(Commission File Number) |
(IRS Employer Identification No.) |
17320 Red Hill Avenue, Suite 140
Irvine, CA 92614
(Address of principal executive offices)
(949) 851-8881
(Registrants telephone number, including area code)
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):
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
||
Class A Common Stock, Par Value $0.01 per share | HABT | The Nasdaq Stock Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 8.01 Other Events.
On January 5, 2020, The Habit Restaurants, Inc., a Delaware corporation (Habit or the Company), YUM! Brands, Inc., a North Carolina corporation (Parent), and YEB Newco Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (Merger Sub), entered into an Agreement and Plan of Merger (the Merger Agreement), providing for the merger of Merger Sub with and into the Company, with the Company surviving the Merger as a wholly-owned subsidiary of Parent (collectively, the Merger). The parties publicly announced the Merger on January 6, 2020.
In connection with the Merger, on February 4, 2020, Habit filed with the Securities and Exchange Commission (SEC) a Preliminary Proxy Statement pursuant to Section 14(a) of the Securities Exchange Act of 1934 (the Preliminary Proxy Statement). On February 19, 2020, Habit filed with the SEC a Definitive Proxy Statement pursuant to Section 14(a) of the Securities Exchange Act of 1934 (the Definitive Proxy Statement and, together with the Preliminary Proxy Statement, the Proxy Statement). Habit commenced mailing the Definitive Proxy Statement to the Companys stockholders on or about February 19, 2020.
Following the Proxy Statement, as of the date of this Current Report on Form 8-K, purported Company stockholders have filed eleven actions in connection with the Merger and the associated disclosures made in the Proxy Statement. On February 5, 2020, a purported stockholder filed a complaint in the United States District Court for the Southern District of New York, captioned Gottlieb v. The Habit Restaurants, Inc., et al., Civil Action No. 1:20-cv-00966, against the Company and the members of the Companys Board of Directors. On February 11, 2020, a purported stockholder filed a complaint in the United States District Court for the Southern District of New York, captioned Morris v. The Habit Restaurants, Inc., et al., Civil Action No. 1:20-cv-01182, against the Company and the members of the Companys Board of Directors. On February 11, 2020, a purported stockholder filed a putative class action complaint in the United States District Court for the District of Delaware, captioned Smith v. The Habit Restaurants, Inc., et al., Civil Action No. 1:20-cv-00203, against the Company and the members of the Companys Board of Directors. On February 12, 2020, a purported stockholder filed a complaint in the United States District Court for the Southern District of New York, captioned Avila v. The Habit Restaurants, Inc., et al., Civil Action No. 1:20-cv-01248, against the Company and the members of the Companys Board of Directors. On February 12, 2020, a purported stockholder filed a complaint in the United States District Court for the Southern District of New York, captioned Sterner v. The Habit Restaurants, Inc., et al., Civil Action No. 1:20-cv-01251, against the Company and the members of the Companys Board of Directors. On February 13, 2020, a purported stockholder filed a putative class action complaint in the United States District Court for the Central District of California, captioned Shudic v. The Habit Restaurants, Inc., et al., Civil Action No. 8:20-cv-00294, against the Company and the members of the Companys Board of Directors. On February 20, 2020, a purported stockholder filed a complaint in the United States District Court for the Central District of California, captioned Grijalva v. The Habit Restaurants, Inc., et al., Civil Action No. 2:20-cv-01661, against the Company and the members of the Companys Board of Directors. On February 21, 2020, a purported stockholder filed a complaint in the United States District Court for the District of New Jersey, captioned Restivo v. The Habit Restaurants, Inc., et al., Civil Action No. 2:20-cv-01927, against the Company and the members of the Companys Board of Directors. On February 24, 2020, a purported stockholder filed a putative class action complaint in the Delaware Court of Chancery, captioned Bounds & Co. v. The Habit Restaurants, Inc., et al., C.A. No. 2020-0124 (Del. Ch.), against the Company and the members of the Companys Board of Directors. On February 24, 2020, a purported stockholder filed a putative class action complaint in the United States District Court for the Central District of California, captioned Stein v. The Habit Restaurants, Inc., et al., Civil Action No. 2:20-cv-01763, against the Company and the members of the Companys Board of Directors. On February 26, 2020, a purported stockholder filed a complaint in the United States District Court for the Central District of California, captioned Antalan v. The Habit Restaurants, Inc., et al., Civil Action No. 2:20-cv-01850, against the Company and the members of the Companys Board of Directors.
The complaints in these eleven actions (collectively, the Merger Litigation) allege, among other things, that the Company and the members of the Companys Board of Directors violated Sections 14(a) and 20(a) of the Exchange Act, and Rule 14a-9 promulgated under the Exchange Act, and breached their fiduciary duties, by misstating or omitting certain allegedly material information in the Proxy Statement filed with the SEC regarding the Merger. The complaints seek, among other things, injunctive relief preventing the consummation of the Merger, rescissory damages or rescission in the event of consummation of the Merger, declaratory relief related to the disclosures in the Proxy Statement, and certain fees and expenses.
The parties to the Merger Litigation subsequently engaged in arms-length negotiations to attempt to resolve the claims asserted in the Merger Litigation, and reached an agreement whereby the Company would file on this Current Report on Form 8-K certain supplemental disclosures regarding the Merger. The Company and Companys Board of Directors believe that the allegations and claims asserted in the Merger Litigation lack merit, and that the supplemental disclosures set forth herein are not required or necessary under applicable laws. However, solely in order to avoid the risk of the Merger Litigation delaying or otherwise adversely affecting the Merger and to minimize the costs, risks, and uncertainties inherent in defending the Merger Litigation, the Company hereby voluntarily amends and supplements the Proxy Statement, as set forth in this Current Report on Form 8-K. The Company and the Companys Board of Directors deny any liability or wrongdoing in connection with the Proxy Statement, and nothing in this Current Report on Form 8-K should be construed as an admission of the legal necessity or materiality under applicable laws of any of the supplemental disclosures.
These supplemental disclosures will not affect the consideration to be paid to Company stockholders in connection with the Merger or the timing of the special meeting of the Companys stockholders (the Special Meeting) scheduled for March 18, 2020, at 9:00 a.m. Pacific Time, at 18700 MacArthur Blvd. Irvine, CA 92612. The Companys Board of Directors continues to recommend that Habits stockholders vote FOR the proposal to adopt the Merger Agreement; FOR the proposal to approve, by advisory (non-binding) vote, certain compensation arrangements that may be paid or become payable to Habits named executive officers that is based on or otherwise related to the Merger Agreement and the transactions contemplated by the Merger Agreement; and FOR the proposal to approve the adjournment of the special meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies if there are insufficient votes to approve the adoption of the Merger Agreement at the time of the Special Meeting.
Supplemental Disclosures to Proxy Statement in Connection with the Merger Litigation
The additional disclosures (the Supplemental Disclosures) in this Current Report on Form 8-K supplement the disclosures contained in the Proxy Statement and should be read in conjunction with the disclosures contained in the Proxy Statement, which in turn should be read in its entirety. To the extent that information set forth in the Supplemental Disclosures differs from or updates information contained in the Proxy Statement, the information in this Current Report on 8-K shall supersede or supplement the information contained in the Proxy Statement. All page references are to the Definitive Proxy Statement and capitalized terms used, but not otherwise defined herein, shall have the meanings ascribed to them in the Definitive Proxy Statement.
1. |
The first full paragraph on page 27 of the Definitive Proxy Statement shall hereby be amended and supplemented as follows: |
On June 20, 2019, the Board of Directors held a special meeting with
representatives of Ropes & Gray LLP (Ropes & Gray) in attendance. During
the The Board of Directors called that meeting, in order for Russell W. Bendel, the Companys chief executive
officer,
briefedto
brief the Board of Directors on recent feedback that he had received from various unaffiliated, long-term stockholders with whom the Company had a generally positive relationship. Mr. Bendel noted that, in light of challenges in the market and the Companys performance, among other considerations, these The unaffiliated
stockholders had expressed a desire for the Company to consider potential strategic alternative transactions.no affiliation with Company management or KarpReilly and were passive investors with the same interests in any proposed
transaction as all Class A common stockholders. Mr. Bendel noted that, in light of challenges in the market and
the Companys performance, among other considerations, these stockholders had expressed a desire for the Company to consider potential strategic alternative transactions. The Board of Directors discussed, among other topics, the importance of
maximizing stockholder value and the in-depth experience of several members of the Board of Directors with different types of strategic transactions. Representatives of Ropes & Gray then
made a presentation to the Board of Directors regarding the directors fiduciary duties with respect to a potential strategic transaction, and the Board of Directors and Ropes & Gray discussed related considerations. After discussion
regarding those issues, the Board of Directors agreed to consider potential strategic alternative transactions and proceeded to discuss next steps, including the potential engagement of a financial advisor. In light of confidentiality concerns, the
Board of Directors also expressed interest in initially approaching only one advisor. After discussion, members of the Board of Directors agreed that Piper Sandler would be a strong candidate to advise the Company on potential strategic alternative
transactions, given its industry expertise, historical knowledge of the Company, and experience advising public companies. The Board of Directors directed Messrs. Bendel and Reilly to contact Piper Sandler to request a proposal and presentation
regarding potential strategic alternative transactions to be given to the Board of Directors during its regularly scheduled July 2019 meeting.
2. |
The second full paragraph on page 28 of the Definitive Proxy Statement shall hereby be amended and supplemented as follows: |
Following execution of the engagement agreement, Piper Sandler approached eighty-five potential buyers, comprised of a mix of strategic and financial buyers. After that initial outreach, the Company executed confidentiality agreements, which included a standstill provision, with forty-eight potential buyers. Under the terms of the confidentiality agreements executed with all potential buyers, the standstill provision automatically terminated and became of no further force or effect if the Company entered into a definitive agreement with respect to, or recommended that the Companys stockholders accept or approve, a transaction involving the acquisition of all or a majority of the Companys outstanding equity securities or all or substantially all of the Companys assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or otherwise).
3. |
The disclosures under the heading Selected Public Companies Analysis on page 54 of the Definitive Proxy Statement shall hereby be amended and supplemented by inserting the following table immediately prior to the paragraph that begins Financial data of the selected companies were based on publicly available . . . .: |
Company |
Market
Capitalization |
EV/LTM
EBITDA |
EV/CY2019
EBITDA |
EV/CY2020
EBITDA |
||||||||||||
Chipotle Mexican Grill, Inc. |
$ | 25,080M | 38.1 | x | 35.6 | x | 27.4 | x | ||||||||
Shake Shack Inc. |
$ | 2,333M | 32.2 | x | 30.4 | x | 25.3 | x | ||||||||
El Pollo Loco Holdings, Inc. |
$ | 549M | 10.6 | x | 10.5 | x | 10.3 | x | ||||||||
Del Taco Restaurants, Inc. |
$ | 304M | 7.7 | x | 7.0 | x | 7.0 | x | ||||||||
Fiesta Restaurant Group, Inc. |
$ | 287M | 5.8 | x | 5.7 | x | 5.6 | x | ||||||||
Noodles & Company |
$ | 248M | 8.6 | x | 8.1 | x | 7.1 | x | ||||||||
Potbelly Corporation |
$ | 104M | 3.8 | x | 3.9 | x | 4.0 | x | ||||||||
Minimum |
3.8 | x | 3.9 | x | 4.0 | x | ||||||||||
Mean |
15.3 | x | 14.5 | x | 12.4 | x | ||||||||||
Median |
8.6 | x | 8.1 | x | 7.1 | x | ||||||||||
Maximum |
38.1 | x | 35.6 | x | 27.4 | x |
4. |
The disclosures under the heading Selected Precedent Transactions Analysis on page 55 of the Definitive Proxy Statement shall hereby be amended and supplemented by inserting the following additional information into the existing table (after the sentence that begins Based on these criteria, Piper Sandler identified and analyzed the following selected precedent transactions:): |
Announcement Date |
Target |
Acquiror |
Enterprise
Value |
Enterprise Value / LTM EBITDA |
||||||
|
Papa Murphys Holdings | MTY Food Group | $ | 186 | 8.4x | |||||
|
Global Franchise Group | Lion Capital, Serruya Private Equity | $ | 400 | 8.6x | |||||
|
Bojangles | Durational Capital, The Jordan Company | $ | 754 | 11.1x | |||||
|
Zoes Kitchen | CAVA Group | $ | 298 |
16.3x |
|||||
|
Jamba | FOCUS Brands | $ | 203 | 15.1x | |||||
|
Qdoba Restaurant Corporation | Apollo Global Management | $ | 305 | 5.3x | |||||
|
Cafe Rio Mexican Grill | Freeman Spogli & Co. | $ | 280 | 13.2x | |||||
|
Checkers & Rallys Restaurants | Oak Hill Capital Partners | $ | 525 | 11.0x | |||||
|
Popeyes Louisiana Kitchen | Restaurant Brands International |
$
|
1,814
|
|
20.9x | ||||
|
Kahala Brands | MTY Food Group | $ | 327 | 10.5x | |||||
|
Krispy Kreme Doughnuts | JAB Holding Company |
$
|
1,306
|
|
16.9x | ||||
|
Del Taco Holdings | Levy Acquisition Corp. | $ | 500 | 8.2x | |||||
|
Einstein Noah Restaurant Group | JAB Holding Company | $ | 471 | 10.1x | |||||
|
Portillo Restaurant Group | Berkshire Partners | $ | 875 | 13.3x | |||||
|
Caribou Coffee Company | JAB Holding Company | $ | 307 | 11.4x | |||||
|
The Krystal Company | Argonne Capital Group | $ | 120 | 5.7x | |||||
|
Arbys Restaurant Group | Roark Capital Group | $ | 339 | 6.4x | |||||
|
Noodles & Company | Catterton Partners | $ | 265 | 10.4x | |||||
|
CKE Restaurants | Apollo Global Management | $ | 1,020 | 6.5x | |||||
Minimum |
5.3x | |||||||||
Mean |
11.0x | |||||||||
Median |
10.5x | |||||||||
Maximum |
20.9x |
5. |
The disclosures under the heading Discounted Cash Flow Analysis on page 56 of the Definitive Proxy Statement shall hereby be amended and supplemented by inserting the following table immediately after the second sentence in the first paragraph that begins The unlevered free cash flows for each year . . . .: |
($ in millions) |
Fiscal Year Ending December | |||||||||||||||
2020E | 2021E | 2022E | 2023E | |||||||||||||
Adjusted EBITDA |
40.5 | 48.5 | 56.5 | 66.5 | ||||||||||||
Less: Depreciation & Amortization and Loss on Disposal of Assets |
(31.1 | ) | (34.9 | ) | (39.7 | ) | (43.0 | ) | ||||||||
Operating Income |
9.4 | 13.7 | 16.8 | 23.5 | ||||||||||||
Less: Income Taxes |
| | | | ||||||||||||
After-Tax Operating Income |
9.4 | 13.7 | 16.8 | 23.5 | ||||||||||||
Less: Non-Cash Rent Expense |
(2.0 | ) | (2.7 | ) | (3.1 | ) | (3.7 | ) | ||||||||
Less: TRA Payments |
(3.2 | ) | (3.2 | ) | (4.3 | ) | (5.5 | ) | ||||||||
Plus: Depreciation & Amortization and Loss on Disposal of Assets |
31.1 | 34.9 | 39.7 | 43.0 | ||||||||||||
Less: Net Capital Expenditures |
(30.3 | ) | (38.5 | ) | (45.9 | ) | (50.4 | ) | ||||||||
Less: Change in Net Working Capital |
1.6 | 3.3 | 3.5 | 2.8 | ||||||||||||
Unlevered Free Cash Flow |
6.5 | 7.4 | 6.7 | 9.6 |
6. |
The disclosures under the heading Premiums Paid Analysis on page 56 of the Definitive Proxy Statement shall hereby be amended and supplemented by inserting the following table immediately after the sentence in the second paragraph that begins The overall low to high acquisition premia observed for these transactions were . . . .: |
Announcement Date |
Acquirer |
Target |
Offer
Price |
Offer Price Premium to | ||||||||||||||||
1 Day
Spot |
30 Day
VWAP |
90 Day
VWAP |
||||||||||||||||||
11/11/19 |
Anheuser-Busch Cos Inc. | Craft Brew Alliance Inc. | $ | 16.50 | 126.3 | % | 110.2 | % | 74.1 | % | ||||||||||
11/06/19 |
ICV Partners | Diversified Restaurant Holding Inc. | $ | 1.05 | 123.4 | % | 6.1 | % | 20.7 | % | ||||||||||
10/28/19 |
LVMH Moet Hennessy LV SE | Tiffany & Co. | $ | 135.00 | 37.0 | % | 25.9 | % | 42.6 | % | ||||||||||
08/28/19 |
Pernod Ricard SA | Castle Brands Inc. | $ | 1.27 | 92.2 | % | 108.2 | % | 135.2 | % | ||||||||||
08/08/19 |
Liberty Tax | Vitamin Shoppe Inc. | $ | 6.50 | 43.2 | % | 15.0 | % | 36.0 | % | ||||||||||
06/24/19 |
L Catterton | Del Friscos Restaurant Group | $ | 8.00 | 18.9 | % | 7.1 | % | 15.8 | % | ||||||||||
06/05/19 |
Elliott Advisors Ltd. | Barnes & Noble Inc. | $ | 6.50 | 39.8 | % | 35.4 | % | 26.7 | % | ||||||||||
04/16/19 |
Apollo Global Management LLC | Smart & Final Stores Inc. | $ | 6.50 | 18.6 | % | 25.7 | % | 10.5 | % | ||||||||||
04/11/19 |
MTY Food Group Inc. | Papa Murphys Holdings Inc. | $ | 6.45 | 31.9 | % | 1.6 | % | 3.5 | % | ||||||||||
02/05/19 |
Apollo Global Management LLC | Shutterfly Inc. | $ | 51.00 | 13.4 | % | 13.3 | % | 12.5 | % | ||||||||||
12/10/18 |
Tivity Health Inc. | NutriSystem Inc. | $ | 47.00 | 37.4 | % | 14.5 | % | 25.2 | % | ||||||||||
09/25/18 |
ARG Holding Corp. | Sonic Corp. | $ | 43.50 | 18.8 | % | 8.8 | % | 15.0 | % | ||||||||||
08/17/18 |
Cava Group | Zoes Kitchen | $ | 12.75 | 33.4 | % | 13.8 | % | 24.4 | % | ||||||||||
08/02/18 |
FOCUS Brands Inc. | Jamba, Inc. | $ | 13.00 | 16.3 | % | 2.4 | % | 9.2 | % | ||||||||||
07/26/18 |
United Natural Foods, Inc. | Supervalu Inc. | $ | 32.50 | 67.1 | % | 15.5 | % | 41.6 | % | ||||||||||
06/21/18 |
Conagra Brands, Inc. | Pinnacle Foods Inc. | $ | 68.00 | 5.3 | % | 5.7 | % | 12.9 | % | ||||||||||
02/23/18 |
General Mills, Inc. | Blue Buffalo Pet Products | $ | 40.00 | 17.2 | % | 7.8 | % | 14.7 | % | ||||||||||
02/20/18 |
Rhone Capital, LLC | Fogo de Chão, Inc. | $ | 15.75 | 25.5 | % | 8.6 | % | 18.4 | % | ||||||||||
02/13/18 |
Durational Capital / The Jordan Company | Bojangles | $ | 16.10 | 38.8 | % | 33.6 | % | 29.7 | % | ||||||||||
02/06/18 |
Feldenkreis Holdings LLC | Perry Ellis International, Inc. | $ | 27.50 | 21.6 | % | 10.9 | % | 11.4 | % | ||||||||||
01/29/18 |
Spice Private Equity AG | Bravo Brio Restaurant Group, Inc. | $ | 4.05 | 37.3 | % | 50.0 | % | 64.6 | % | ||||||||||
12/17/17 |
Hershey Co | Amplify Snack Brands Inc. | $ | 12.00 | 71.4 | % | 89.9 | % | 87.5 | % | ||||||||||
12/14/17 |
Campbell Soup Company | Snyders-Lance, Inc. | $ | 50.00 | 26.9 | % | 23.3 | % | 29.5 | % | ||||||||||
11/13/17 |
Arbys Restaurant Group Inc. | Buffalo Wild Wings Inc. | $ | 157.00 | 32.1 | % | 36.5 | % | 43.4 | % | ||||||||||
10/26/17 |
Utz Quality Foods Inc. | Inventure Foods Inc. | $ | 4.00 | (10.3 | %) | (4.8 | %) | (1.5 | %) | ||||||||||
09/19/17 |
Post Holdings Inc. | Bob Evans Farms Inc. | $ | 77.00 | 5.6 | % | 7.9 | % | 9.7 | % | ||||||||||
07/06/17 |
Liberty Interactive Corp. | HSN Inc. | $ | 40.36 | 28.9 | % | 10.7 | % | 12.0 | % | ||||||||||
06/29/17 |
Monomoy Capital Partners LLC | West Marine Inc. | $ | 12.97 | 33.7 | % | 31.5 | % | 27.9 | % | ||||||||||
06/16/17 |
Amazon.Com Inc. | Whole Foods Market Inc. | $ | 42.00 | 27.0 | % | 5.1 | % | 15.4 | % | ||||||||||
05/22/17 |
HGGC, LLC | Nutraceutical International Corporation | $ | 41.80 | 49.3 | % | 12.8 | % | 31.5 | % | ||||||||||
04/06/17 |
Tyson Foods Inc. | AdvancePierre Foods Hldg Inc. | $ | 40.25 | 31.8 | % | 32.8 | % | 41.4 | % | ||||||||||
04/04/17 |
Sycamore Partners LLC | Staples Inc. | $ | 10.25 | 18.4 | % | 16.1 | % | 13.5 | % | ||||||||||
04/03/17 |
JAB Holdings | Panera Bread Co. | $ | 315.00 | 20.3 | % | 22.4 | % | 33.5 | % | ||||||||||
03/13/17 |
NRD Capital Management | Ruby Tuesday, Inc. | $ | 2.40 | 37.1 | % | 28.3 | % | 4.8 | % | ||||||||||
02/21/17 |
Restaurant Brands Intl Inc. | Popeyes Louisiana Kitchen Inc. | $ | 79.00 | 19.5 | % | 7.5 | % | 12.5 | % | ||||||||||
02/01/17 |
Reckitt Benckiser Group PLC | Mead Johnson Nutrition Co. | $ | 90.00 | 27.7 | % | 24.1 | % | 24.3 | % | ||||||||||
Minimum |
(10.3 | %) | (4.8 | %) | (1.5 | %) | ||||||||||||||
Mean |
35.6 | % | 24.0 | % | 28.6 | % | ||||||||||||||
Median |
30.3 | % | 14.8 | % | 22.5 | % | ||||||||||||||
Maximum |
126.3 | % | 110.2 | % | 135.2 | % |
7. |
The disclosures under the heading Employment Agreements Following the Merger on page 68 of the Definitive Proxy Statement shall hereby be amended and supplemented as follows: |
As of the date of this proxy statement, Parent has informed the Company that none of the Companys executive officers have entered into any agreement, arrangement or understanding with Parent, the Surviving Corporation or their affiliates regarding employment following the Effective Time. It is possible that Parent may enter into employment or consultancy, compensation, severance or other employee or consultant benefits arrangements with the Companys executive officers and certain other key employees in the future, but there can be no assurance that any parties will reach any such agreement. The final bid Parent submitted on December 18, 2019 stated Parents expectation that the Companys executive officers would continue in their roles with the Company after the Effective Time, as well as Parents expectation that it would finalize retention agreements with the Companys executive officers prior to completion of any transaction. However, prior to execution of the Merger Agreement on January 5, 2020, the Companys executive officers did not have any discussions with Parent regarding employment offers or any terms of their potential employment following the Effective Time.
Cautionary Statement Regarding Forward-Looking Statements
Certain statements in this communication contain forward-looking statements within the meaning of the federal securities laws, including the Private Securities Litigation Reform Act of 1995. In some cases, words such as anticipates, expects, intends, plans, projects, believes, may, will, would, could, should, seeks, estimates and variations on these words and similar expressions may identify such forward-looking statements, although not all forward-looking statements contain these words. Forward-looking statements can be identified by the fact that they do not relate strictly to historical or current facts. Forward-looking statements are based on current expectations, estimates, assumptions, or projections concerning future results or events, including, without limitation, the projected closing date for the transaction, the anticipated benefits of the transaction, and the future earnings and performance of Parent or any of its businesses. Forward-looking statements are neither predictions nor guarantees of future events, circumstances, or performance and are inherently subject to known and unknown risks, uncertainties and assumptions that could cause actual results to differ materially from those indicated by those statements. We cannot assure you that any of the expectations, estimates, or projections expressed herein will be achieved. Numerous factors related to the transaction could cause actual results and events to differ materially from those expressed or implied by forward-looking statements, including, without limitation: the risk that the proposed transaction may not be completed in a timely manner or at all; the failure to satisfy any of the conditions to the consummation of the proposed transaction, including the adoption of the merger agreement by the shareholders of the Company; the timing to consummate the proposed transaction; the occurrence of any event, change, or other circumstance that could give rise to the termination of the merger agreement between the parties; the effect of the pendency of the proposed transaction on Parent and the Companys business relationships, operating results and business generally; the risk that the proposed transaction may disrupt current plans and operations and the potential difficulties in employee retention as a result of the proposed transaction; the ability to achieve the synergies and value creation contemplated; Parents ability to promptly and effectively integrate the Companys businesses; the risk that revenues following the transaction may be lower than expected; the risk that operating costs and business disruption (including, without limitation, difficulties in maintaining relationships with employees and suppliers) may be greater than expected; the assumption of unexpected risks and liabilities; the outcome of any legal proceedings that have been or may be instituted related to the proposed transaction; the diversion of and attention of management of both Parent and the Company on transaction-related issues; the success of Parents refranchising strategy; and the other factors discussed in Risk Factors in Parents Annual Report on Form 10-K for the fiscal year ended December 31, 2019, the Companys Annual Report on Form 10-K for the fiscal year ended December 25, 2018 and subsequent filings with the SEC made by both Parent and the Company, which are available at http://www.sec.gov. Parent and the Company assume no obligation to update the information in the communication, except as otherwise required by law. Accordingly, you should not place undue reliance on these forward-looking statements.
Additional Information and Where to Find It
In connection with the proposed Merger, the Company filed with the SEC a Definitive Proxy Statement on Schedule 14A on February 19, 2020 and began mailing the Definitive Proxy Statement and proxy card on or around February 19, 2020. The proxy statement contains important information about the proposed Merger and related matters. STOCKHOLDERS AND SECURITY HOLDERS OF THE COMPANY ARE URGED TO READ THESE MATERIALS (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND ANY OTHER RELEVANT DOCUMENTS IN CONNECTION WITH THE MERGER THAT THE COMPANY WILL FILE WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY, THE MERGER, AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT THAT HOLDERS OF THE COMPANYS SECURITIES SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING VOTING. This communication is not a substitute for the Proxy Statement or for any other document that the Company may file with the SEC and send to the Companys stockholders in connection with the proposed Merger. The proposed Merger will be submitted to Company stockholders for their consideration.
Stockholders and security holders of the Company will be able to obtain the proxy statement, as well as other filings containing information about the Company and the proposed Merger, without charge, at the SECs website (http://www.sec.gov). Copies of the proxy statement can also be obtained, without charge, by contacting the Companys Investor Relations at HabitIR@habitburger.com or (949) 943-8692, or by going to the Companys Investor Relations page on its website at http://ir.habitburger.com/investor-overview.
Participants in the Solicitation
The Company and certain of its directors, executive officers and employees may be deemed to be participants in the solicitation of proxies in respect of the proposed Merger. Information regarding the interests of the Companys directors and executive officers and their ownership of shares of the Companys common stock is set forth in the Companys Annual Report on Form 10-K for the fiscal year ended December 25, 2018, which was filed with the SEC on March 1, 2019, and in the Companys proxy statement on Schedule 14A, which was filed with the SEC on April 23, 2019, and the Companys Definitive Proxy Statement on Schedule 14A filed with the SEC on February 19, 2020 in connection with the proposed Merger, and certain of its Current Reports on Form 8-K. Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests in the proposed Merger, by security holdings or otherwise, will be contained other relevant materials to be filed with the SEC in connection with the proposed Merger. Free copies of these documents may be obtained as described in the preceding paragraph.
SIGNATURES
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 hereunto duly authorized.
The Habit Restaurants, Inc. | ||
By: |
/s/ Ira Fils |
|
Ira Fils | ||
Chief Financial Officer and Secretary |
Date: March 9, 2020
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