Current Report Filing (8-k)
April 05 2018 - 8:49AM
Edgar (US Regulatory)
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
Date of Report (Date of earliest event
reported): April 5, 2018
FOGO DE CHÃO, INC.
(Exact name of registrant as specified
in its charter)
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Delaware
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001-37450
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45-5353489
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(State of Incorporation
or Organization)
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(Commission
File Number)
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(IRS Employer
Identification Number)
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5908 Headquarters Drive, Suite K200
Plano, TX 75024
(Address of Principal Executive Offices)
(972) 960-9533
(Registrant’s Telephone Number, Including
Area Code)
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 Instructions
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))
Indicate
by check mark whether the registrant is an emerging growth company 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
x
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.
x
Introductory Note
On April 5, 2018, pursuant to the Agreement and Plan of Merger,
dated as of February 20, 2018 (the “
Merger Agreement
”), by and among Fogo de Chão, Inc., a Delaware corporation
(the “
Company
”), Prime Cut Intermediate Holdings Inc., a Delaware corporation (“
Parent
”),
and Prime Cut Merger Sub Inc., a Delaware corporation and wholly-owned subsidiary of Parent (“
Merger Subsidiary
”),
Merger Subsidiary merged with and into the Company, with the Company surviving the merger as a wholly owned subsidiary of Parent
(the “
Merger
”).
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Item 1.01
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Entry into a Material Definitive Agreement.
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The information contained in Item 2.03 of this Current Report
on Form 8-K is incorporated by reference into this Item 1.01.
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Item 2.01
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Completion of Acquisition or Disposition of Assets
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On April 5, 2018, Parent completed the acquisition of the Company.
Pursuant to the Merger Agreement, Merger Subsidiary merged with and into the Company, with the Company surviving the merger as
a wholly owned subsidiary of Parent.
At the Effective Time (as used herein, as such term is defined
in the Merger Agreement) of the Merger, each share of the Company’s common stock, par value $0.01 per share (“
Company
common stock
”) issued and outstanding immediately prior to the Effective Time of the Merger (the “
Effective
Time
”), other than shares of Company common stock owned by the Company, any subsidiary of the Company, Parent, Merger
Subsidiary or any other subsidiary of Parent or shares with respect to which a demand for appraisal has been perfected and not
withdrawn in accordance with Section 262 of the General Corporation Law of the State of Delaware (the “
DGCL
”),
has been converted into the right to receive $15.75 per share, less any applicable withholding taxes, in cash, without interest
(the “
Per Share Merger Consideration
”).
In addition, immediately prior to the Effective Time, pursuant
to the terms of the Merger Agreement:
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·
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each outstanding Company stock option, whether or not exercisable
or vested, was canceled, and the holder of such stock option became entitled to receive an amount in cash, less applicable tax
withholding, equal to (i) the excess, if any, of (a) the Per Share Merger Consideration minus (b) the exercise price per share
of Company common stock subject to such stock option, multiplied by (ii) the number of shares of Company common stock subject to
such stock option immediately prior to the Effective Time;
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·
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the restrictions on each outstanding share of restricted Company common
stock (excluding shares of performance-based restricted Company common stock discussed below) lapsed, and the holder of such share
of restricted Company common stock became entitled to receive, in respect of such share, an amount in cash, less applicable tax
withholding, equal to the Per Share Merger Consideration; and
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·
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the restrictions on each outstanding share of restricted Company common
stock subject to performance-based vesting conditions lapsed, and the holder of each award of performance-based restricted stock
became entitled to receive an amount in cash, less applicable tax withholding, equal to (i) the Per Share Merger Consideration
multiplied by (ii) the number of shares of Company common stock subject to such award of performance-based restricted stock (assuming
that the performance conditions on such restricted stock are deemed to be achieved at the target performance level).
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The foregoing summary of the Merger Agreement does not purport
to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is incorporated herein
by reference. A copy of the Merger Agreement is filed herewith as Exhibit 2.1.
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Item 2.03
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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In connection with the Merger, Merger Subsidiary (the “
Initial
Borrower
”) and the Company (as successor to the Initial Borrower) entered into a Credit and Guaranty Agreement, dated
as of April 5, 2018 (the “
Credit Agreement
”), by and among the Initial Borrower, the Company, Parent, certain
subsidiaries of the Company party thereto as guarantors, certain lenders party thereto from time to time, and Credit Suisse AG,
Cayman Islands Branch as administrative agent and collateral agent (the “
Agent
”).
The Credit Agreement provides for U.S. dollar term loans in
an aggregate principal amount of $325 million and U.S. dollar revolving loan commitments in an aggregate principal amount
of $40 million. Borrowings under the Credit Agreement were used on the closing date to repay outstanding obligations under
the Company’s existing credit agreement, to finance a portion of the purchase price for the acquisition and to pay certain
fees and expenses related to the transactions.
Interest on the Company’s borrowings under the Credit
Agreement will accrue at a per annum rate equal to the sum of (x) either (at the Company’s option) (i) the adjusted LIBOR
rate (generally, the LIBOR rate for an interest period selected by the Company and adjusted for statutory reserves) or (ii) the
base rate (generally equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) a “prime rate” and (c) the
adjusted LIBOR rate for an interest period of one-month plus 1.00%), in any case not less than zero, plus (y) the applicable margin.
The applicable margin is equal to 4.50% per annum in the case of any term loan borrowings bearing interest by reference to the
adjusted LIBOR rate, 4.00% to 4.50% (depending on the total net leverage ratio) in the case of revolving borrowings bearing interest
by reference to the adjusted LIBOR rate, 3.50% per annum in the case of any term loan borrowings bearing interest by reference
to the base rate, and 3.00% to 3.50% (depending on the total net leverage ratio) in the case of revolving borrowings bearing interest
by reference to the base rate.
The Credit Agreement contains customary affirmative and negative
covenants, including restrictions on the following: liens, investments, indebtedness, fundamental changes, asset dispositions,
changes in the nature of the business, affiliate transactions, limitations on prepayments and modifications of debt, restrictive
agreements and use of proceeds. The Credit Agreement also contains customary events of default, including failure to make certain
payments under the Credit Agreement when due, breach of covenants, materially incorrect representations and warranties, default
on other material indebtedness, events of bankruptcy, certain judgments, the failure of any of the loan documents to remain in
full force and effect and the occurrence of any change in control with respect to the Company.
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Item 3.01
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Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
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On April 5, 2018, in connection with the closing of the Merger,
the Company notified Nasdaq Global Select Market ( “
Nasdaq
”) that it had filed the certificate of merger with
the Secretary of State of the State of Delaware and that the Merger is deemed effective, and requested that Nasdaq suspend trading
of the Company’s common stock prior to the commencement of trading on Nasdaq on the Closing Date (as such term is defined
in the Merger Agreement), remove Company common stock from listing on Nasdaq and file with the SEC a notification of removal from
listing and deregistration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”)
on Form 25 with respect to Company common stock. As a result, Company common stock will no longer be listed on Nasdaq.
In addition, the Company intends to file a certification on
Form 15 with the SEC requesting the termination of registration of the shares of Company common stock under Section 12(g) of the
Exchange Act and the suspension of reporting obligations under Sections 13 and 15(d) of the Exchange Act with respect to the shares
of Company common stock.
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Item 3.03
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Material Modification to Rights of Security Holders
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The information contained in Items 2.01, 3.01 and 5.03 of this
Current Report on Form 8-K are incorporated by reference into this Item 3.03.
At the Effective Time , each holder of shares of Company common
stock issued and outstanding immediately prior to the Effective Time ceased to have any rights as a stockholder of the Company
(other than the right to receive the Merger Consideration pursuant to the Merger Agreement or, prior to 5:00 p.m. on April 5, 2018,
and subject to the requirements of Section 262 of the DGCL, demand appraisal in respect of such shares).
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Item 5.01
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Change in Control of Registrant
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The information contained in Items 2.01, 3.01 and 5.02 of this
Current Report on Form 8-K are incorporated by reference into this Item 5.01.
At the Effective Time, a change in control of the Company occurred
and the Company became a wholly-owned subsidiary of Parent.
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Item 5.02
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensation Arrangement
of Certain Officers
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In accordance with the Merger Agreement, as of the Effective
Time, each of Gerald W. Deitchle, Douglas A. Haber, Todd M. Abbrecht, Neil Moses, Douglas R. Pendergast and Jeff T. Swenson resigned
from his position as a director of the Company. The resignations of the directors of the Company were not due to a disagreement
with the Company on any matter relating to the Company’s operations, policies or practices.
As of the Effective Time, Lawrence J. Johnson, Eytan Tigay and
Lucas Flynn are directors of the Company.
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Item 5.03
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
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At the Effective Time and pursuant to the Merger, the certificate
of incorporation of the Company was amended and restated in its entirety. A copy of such amended and restated certificate
of incorporation of the Company is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
At the Effective Time and pursuant to the Merger, the bylaws
of Merger Subsidiary in effect immediately prior to the Effective Time became the bylaws of the Company, as the surviving corporation
in the Merger, except that references to the name of Merger Subsidiary have been replaced with references to the name of the Company.
A copy of such bylaws is attached hereto as Exhibit 3.2 and is incorporated herein by reference.
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Item 9.01
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Financial Statements and Exhibits
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SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date: April 5, 2018
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FOGO DE CHÃO, INC.
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By:
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/s/ Lawrence J.
Johnson
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Lawrence J. Johnson
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Chief Executive Officer
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