This Amendment No. 2 (
Amendment No.
2
) amends and
supplements the Solicitation/Recommendation Statement on Schedule
14D-9
filed by Papa Murphys Holdings, Inc. (the
Company
) with the Securities and Exchange Commission on April 25,
2019 (as amended and supplemented from time to time, and including the documents annexed thereto or incorporated therein the
Schedule
14D-9
). The Schedule
14D-9
relates to the tender offer by MTY Columbia Merger Sub, Inc. (
Merger Sub
), a Delaware corporation and wholly owned subsidiary of MTY Franchising USA, Inc. (
Parent
),
a Delaware corporation, to purchase all of the issued and outstanding shares of the Companys common stock, par value $0.01 per share (each such share, a
Share
, and collectively, the
Shares
) at a purchase
price equal to $6.45 per Share (the
Offer Price
), net to the seller in cash, without interest and less any applicable taxes required to be withheld, upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated April 25, 2019, and in the related Letter of Transmittal, in each case, as may be amended or supplemented from time to time.
Except as otherwise set forth below, the information set forth in the Schedule
14D-9
remains unchanged
and is incorporated herein by reference as relevant to items in this Amendment No. 2. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Schedule
14D-9.
Explanatory Note:
As described below in Item 8 of the Schedule
14D-9
under the heading
Litigation Related to the
Transactions
, and as previously disclosed on May 6, 2019, several purported stockholders have filed putative class action lawsuits challenging, among other things, the adequacy of the disclosures made in connection with the
Transactions. The Company and the other defendants in these lawsuits vigorously deny that they have committed any violation of law or engaged in any of the wrongful acts that were or could have been alleged in the lawsuits, and expressly maintain
that they diligently and scrupulously complied with their fiduciary and other legal duties. The Company and the other defendants in these lawsuits deny that any further disclosure is required to supplement the Schedule
14D-9
under any applicable rule, statute, regulation or law. However, solely to avoid the risk that a court may issue an injunction in connection with these lawsuits, which may delay or otherwise adversely
affect the completion of the Transactions, the Company is providing certain additional disclosures that are supplemental to those contained in the Schedule
14D-9.
None of the defendants has admitted wrongdoing
of any kind, including but not limited to inadequacies in any disclosure, the materiality of any disclosure that the plaintiffs contend should have been made, or any violation of any federal or state law. Nothing in this document shall be deemed an
admission of the legal necessity for, or materiality under any applicable laws of, any of the additional disclosures set forth herein. This supplemental information should be read in conjunction with the Schedule
14D-9,
which we urge you to read in its entirety. The Companys additional disclosures are as follows:
Item 3. Past Contacts, Transactions, Negotiations and Agreements.
(a) Item 3 of the Schedule
14D-9
is hereby amended and supplemented by adding the following
sentence as the last sentence to the first paragraph under the heading
Arrangements between the Company and its Executive Officers, Directors and AffiliatesEffect of the Merger on Company Shares and Equity-Based Incentive
AwardsShares
on page 5 of the Schedule
14D-9:
For a description of the
beneficial ownership of Companys executive officers and directors, please refer to
Item 12Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters Security Ownership of Certain
Beneficial Owners and Management
in Amendment No. 1 to the Companys Annual Report on Form
10-K,
filed with the SEC on April 30, 2019.
(b) Item 3 of the Schedule
14D-9
is hereby amended and supplemented by adding the following paragraph
as the eighth paragraph under the heading
Arrangements between the Company and its Executive Officers, Directors and AffiliatesChange of Control Agreements
on page 7 of the Schedule
14D-9:
MTY, on behalf of Parent and Merger Sub, during the negotiation and bid submission
process discussed under Item 4 of the Schedule
14D-9
under the heading
Background of the Offer; Reasons for the Recommendation of the BoardBackground of the Offer
after it provided its
final price of $6.45 per share, indicated to members of the Companys management its general desire to retain the Companys executive officers. There are no agreements between Parent, Merger Sub, MTY or their respective affiliates and any
executive officers or directors of the Company regarding the retention of any Company executive officers or directors or the terms under which any officers or directors would be retained.
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