- Amended tender offer statement by Issuer (SC TO-I/A)
January 27 2009 - 4:37PM
Edgar (US Regulatory)
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or
13(e)(1)
of the Securities Exchange Act of 1934
(Amendment
No. 1)
RED ROBIN GOURMET BURGERS, INC.
|
(Name of Subject
Company (Issuer) and Filing Person (Offeror))
|
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OPTIONS
TO PURCHASE COMMON STOCK, PAR VALUE $0.001 PER SHARE
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(Title of
Class of Securities)
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75689M101
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(CUSIP Number of
Common Stock Underlying Class of Securities)
|
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Dennis
B. Mullen
Chief Executive Officer and Chairman of the
Board
Red Robin Gourmet Burgers, Inc.
6312 S. Fiddlers Green Circle, Suite 200N
Greenwood Village, CO 80111
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(Name, Address,
and Telephone numbers of person authorized
to receive notices and communications on behalf of filing persons)
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Copy to:
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Ronald
R. Levine, II, Esq.
Davis Graham & Stubbs LLP
1550 Seventeenth Street, Suite 500
Denver, Colorado 80202
Telephone: (303) 892-9400
|
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Annita
M. Menogan, Esq.
Chief Legal Officer
Red Robin Gourmet Burgers, Inc.
6312 S. Fiddlers Green Circle, Suite 200N
Greenwood Village, CO 80111
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|
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Calculation of
Filing Fee
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Transaction Valuation*
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Amount of filing fee**
|
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$3,669,615.83
|
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$144.22
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*Calculated solely for
purposes of determining the filing fee.
The calculation of the transaction valuation assumes that options to
purchase 1,645,248 shares of common stock that are eligible to participate in
this offer will be purchased by the issuer for an aggregate of $3,669,615.83 in
cash. The actual transaction value will
be based on the number of options tendered, if any, which may result in a
lesser aggregate amount.
**The amount of the
filing fee, calculated in accordance with Rule 0-11 of the Securities
Exchange Act of 1934, as amended, and Fee Rate Advisory No. 6 for fiscal
year 2008, equals $39.30 per million dollars of the transaction value. The transaction valuation set forth above was
calculated for the sole purpose of determining the filing fee and should not be
used for any other purpose.
x
Check the box if any part of the fee is
offset as provided by Rule 0-11(a)(2) and identify the filing with
which the offsetting fee was previously paid. Identify the previous filing by
registration statement number, or the Form or Schedule and the date of its
filing.
Amount Previously
Paid: $144.22
Form or Registration
No.: Schedule TO-I, File No. 5-7855
Filing Party: Red
Robin Gourmet Burgers, Inc.
Date Filed: January 14,
2009
o
Check the box if the filing relates solely
to preliminary communications made before the commencement of a tender offer.
Check the appropriate
boxes below to designate any transactions to which the statement relates:
o
third-party tender offer subject to Rule 14d-1.
x
issuer tender offer subject to Rule 13e-4.
o
going-private transaction subject to Rule 13E-3.
o
amendment to Schedule 13D under Rule 13d-2.
Check the following box
if the filing is a final amendment reporting the results of the tender
offer:
o
INTRODUCTORY
STATEMENT
This Amendment No. 1
to Tender Offer Statement (the
Amendment
)
amends and supplements the Tender Offer Statement on Schedule TO (the
Schedule TO
) originally filed with the
Securities and Exchange Commission (the
SEC
)
on January 14, 2009 by Red Robin Gourmet Burgers, Inc. (the
Company
).
The Company has made an offer to purchase stock options for cash from
eligible employees, upon the terms and subject to the conditions set forth in
the Offer to Purchase Outstanding Stock Options for Cash, dated January 14,
2009 (the
Offering Document
),
the Introductory Letter, the Election Form and the Election Withdrawal
Notice, copies of which are filed as Exhibits (a)(1)(i), (a)(1)(ii), (a)(1)(iv) and
(a)(1)(v), respectively, to Schedule TO.
This Amendment is intended to satisfy the reporting requirements of Rule 13e-4(c)(3) under
the Securities Exchange Act of 1934, as amended. Except as specifically provided herein, this
Amendment does not modify any of the information previously reported in
Schedule TO or any of the exhibits attached thereto.
This Amendment should be
read together with the Schedule TO and the exhibits attached thereto,
including, without limitation, the Offering Document.
The information in the Schedule TO, the Offering Document, the
Introductory Letter, the Election Form and the Election Withdrawal Notice
is incorporated in this Amendment by reference to all of the applicable items
in the Schedule TO, except to the extent such information is amended and
supplemented as specifically provided in this Amendment. Capitalized terms used but not defined
herein shall have the meaning ascribed to such terms in the Offering Document
and the Schedule TO.
Items 1,
2(b), 4(a), 4(b), 6(a) and 6(b)
.
Items 1, 2(b), 4(a),
4(b), 6(a) and 6(b) of Schedule TO, which incorporate by reference
certain information contained in the Offering Document, are hereby amended and
supplemented to incorporate the amended information set forth below in Item 12.
Item 12. Exhibits
.
Exhibit (a)(1)(i) Offer to Purchase Outstanding Stock
Options for Cash
The Offering Document
attached to Schedule TO as Exhibit (a)(1)(i) is hereby amended and
supplemented as follows:
(1)
Summary
Term Sheet (Section I) Question 9 (When will I receive my cash payment)-
page 4.
The second
sentence of the answer to Question 9 is hereby deleted in its entirety and
replaced with the following sentence:
You will be entitled to
a single lump sum cash payment equal to the amount of the cash payment set
forth on your Cash Payment Statement, reduced by any required income and
payroll tax withholding (see Question 32), promptly upon the expiration of
the Offer.
2
(2)
Offer
Terms (Section III) Section 4 (Cash Payment for Eligible Options)
page 14.
The Risk-free
interest rate assumption set forth under the
Valuation
heading of Section 4 is hereby amended
to state 1.017%.
(3)
Offer
Terms (Section III) Section 7 (Acceptance of and Payment for
Eligible Options) page 17.
The first sentence under the
Cash
Payment
heading of Section 7 is hereby deleted in its
entirety and replaced with the following sentence:
You will be entitled to
a single lump sum cash payment equal to the amount of the cash payment set
forth on your Cash Payment Statement, reduced by any required income and
payroll tax withholding (see Section 9), promptly upon the expiration of
the Offer.
(4)
Offer
Terms (Section III) Section 20 (Miscellaneous; Forward-Looking
Statements) page 26.
The first sentence under the
Forward-Looking
Statements
heading of Section 20 is hereby deleted in its
entirety and replaced with the following sentence:
Certain information and statements contained
in this Offering Document and our SEC reports are forward-looking statements.
3
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated:
January 27, 2009
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RED
ROBIN GOURMET BURGERS, INC.
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/s/ Katherine L.
Scherping
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By: Katherine L.
Scherping
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Title: Chief Financial
Officer
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