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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13E-3
(RULE 13e-100)
TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES
EXCHANGE ACT OF 1934 AND RULE 13e-3 THEREUNDER
RULE 13-e TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE
SECURITIES EXCHANGE ACT OF 1934
Il Fornaio (America) Corporation
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(Name of the Issuer)
Il Fornaio (America) Corporation
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(Name of the person(s) filing statement)
Common Stock, Par Value $0.001 Per Share
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(Title of Class of Securities)
451926 10 9
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CUSIP Number of Class of Securities
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<S> <C>
MICHAEL J. HISLOP CYDNEY S. POSNER, ESQ.
President and Chief Executive Officer VIRGINIA C. EDWARDS, ESQ.
Il Fornaio (America) Corporation Cooley Godward LLP
770 Tamalpais Drive, Suite 400 One Maritime Plaza, 20th Floor
Corte Madera, California 94925 San Francisco, CA 94111
(415) 945-0500 (415) 693-2000
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Person(s) Filing Statement)
This statement is filed in connection with (check the appropriate box):
a. /X/ The filing of solicitation materials or an information
statement subject to Regulation 14A, Regulation 14C, or
Rule 13e-3(c) under the Securities Exchange Act of 1934.
b. / / The filing of a registration statement under the Securities Act
of 1933.
c. / / A tender offer.
d. / / None of the above.
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies. /X/
Check the following box if the filing is a final amendment reporting the
results of the transaction. / /
CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
$92,344,774 $18,469
1.
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*For purposes of calculating the filing fee only. Determined by (1)
multiplying 5,827,571 shares of common stock, par value $0.001 per share, of Il
Fornaio (America) Corporation by $14.00 per share and (2) adding thereto
$10,758,780, which is the aggregate difference between $14.00 and the exercise
prices for options to acquire 1,576,916 shares of common stock.
**The amount of the filing fee calculated in accordance with Exchange
Act Rule 0-11 equals 1/50th of 1% of the transaction valuation.
/X/ Check box if any part of the fee is offset as provided by Exchange Act 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: $18,469
Form or Registration No.: Schedule 14A
Filing Party: Il Fornaio (America) Corporation
Date Filed: January 10, 2001
INTRODUCTION
This Rule 13e-3 Transaction Statement on Schedule 13E-3 (this "Schedule
13E-3") is being filed by Il Fornaio (America) Corporation, a Delaware
corporation ("Il Fornaio"), and the issuer of the equity securities that are the
subject of the Rule 13e-3 transaction. Pursuant to an Agreement and Plan of
Merger, dated as of November 15, 2000, as amended January 9, 2001, between Il
Fornaio and Manhattan Acquisition Corp., a Delaware corporation ("Newco") that
is a wholly owned subsidiary of Bruckman, Rosser, Sherrill and Co. II, L.P.
("BRS"), Newco will merge with and into Il Fornaio, and Il Fornaio will be the
surviving corporation.
Upon completion of the merger, each issued and outstanding share of Il
Fornaio common stock will be converted into the right to receive $14.00 in cash,
without interest, except that: (1) 446,963 shares of Il Fornaio common stock
held by certain Il Fornaio directors and executive officers, as well as the
Italian founder of the Il Fornaio brand (the "continuing stockholders") will be
converted into equity interests in Il Fornaio as the surviving corporation; (2)
treasury shares and shares of Il Fornaio common stock held by Newco immediately
prior to the effective time will be canceled without any payment therefor; and
(3) shares held by stockholders who properly exercise appraisal rights will be
subject to appraisal in accordance with Delaware law. Upon completion of the
merger, BRS, the continuing stockholders and BancBoston Capital, Inc., which has
committed to provide financing for the transaction subject to certain
conditions, are expected to own approximately 58%, 27% and 10%, respectively, of
Il Fornaio's post-merger common stock and 61%, 29% and 10% of Il Fornaio's
post-merger preferred stock on a fully diluted basis (including options,
warrants and restricted shares expected to be issued as employee incentives).
Concurrently with the filing of this Schedule 13E-3, Il Fornaio is
filing a preliminary proxy statement pursuant to which the stockholders of Il
Fornaio will be given notice of the merger (the "proxy statement"). The
information set forth in the proxy statement, including all schedules, exhibits,
appendices and annexes thereto, is hereby expressly incorporated herein by
reference and the responses to each item in this Schedule 13E-3 are qualified in
their entirety by the information contained in the proxy statement and the
schedules, exhibits, appendices and annexes thereto.
ITEM 1. SUMMARY TERM SHEET.
The information contained in the sections entitled "SUMMARY TERM SHEET" and
"QUESTIONS AND ANSWERS ABOUT THE MERGER" in the proxy statement is incorporated
herein by reference.
2.
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ITEM 2. SUBJECT COMPANY INFORMATION.
(a) Name and Address. The information contained in the section
entitled "THE PARTICIPANTS" in the proxy statement is
incorporated herein by reference.
(b) Securities. The information contained in the section entitled
"SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT" in the proxy statement is incorporated herein by
reference.
(c) Trading Market and Price. The information contained in the
section entitled "MARKETS AND MARKET PRICE" in the proxy
statement is incorporated herein by reference.
(d) Dividends. The information contained in the section
entitled "MARKETS AND MARKET PRICE" in the proxy statement is
incorporated herein by reference.
(e) Prior Public Offerings. Not applicable.
(f) Prior Stock Purchases. The information contained in the
section entitled "COMMON STOCK PURCHASE INFORMATION" in the
proxy statement is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF THE FILING PERSONS.
(a), (c) Name and Address; Business and Background of Natural Persons.
The information contained in the section entitled "THE
PARTICIPANTS" in the proxy statement is incorporated herein by
reference. Il Fornaio, the filing entity, is also the subject
company. The information contained in the sections entitled
"SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT" and "DIRECTORS AND EXECUTIVE OFFICERS OF IL
FORNAIO" in the proxy statement is incorporated herein by
reference. During the last five years, to the best knowledge
of Il Fornaio, none of Il Fornaio's current directors or
executive officers has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or has
been a party to any judicial or administrative proceeding that
resulted in a judgment, decree or final order enjoining
further violations of, or prohibiting activities subject to,
federal or state securities laws, or a finding of any
violation of such laws. All current Il Fornaio directors and
executive officers are U.S. citizens.
(b) Business and Background of Entities. The information contained
in the section entitled "THE PARTICIPANTS" in the proxy
statement is incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION.
(a)(1) Tender Offers. Not applicable.
(a)(2)(i) Transaction Description. The information contained in the
sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS
ABOUT THE MERGER," "SUMMARY" and "THE MERGER AGREEMENT" in the
proxy statement is incorporated herein by reference.
3.
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(a)(2)(ii) Consideration. The information contained in the sections
entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT
THE MERGER," "SUMMARY" and "THE MERGER AGREEMENT-Payment for
Shares" in the proxy statement is incorporated herein by
reference.
(a)(2)(iii) Reasons for Transaction. The information contained in the
sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER,"
"SUMMARY," "SPECIAL FACTORS-Background of the Merger,"
"-Recommendation of the Board of Directors; Fairness of the
Merger" and "-Purpose and Structure of the Merger" in the
proxy statement is incorporated herein by reference.
(a)(2)(iv) Vote Required for Approval. The information contained in the
sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS
ABOUT THE MERGER," "SUMMARY" and "THE SPECIAL MEETING-Record
Date and Voting Information" in the proxy statement is
incorporated herein by reference.
(a)(2)(v) Differences in the Rights of Security Holders. The information
contained in the sections entitled "SUMMARY TERM SHEET,"
"QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY," "SPECIAL
FACTORS-Effects of the Merger" and "-Interests of Il Fornaio
Directors and Officers in the Merger" in the proxy statement
is incorporated herein by reference.
(a)(2)(vi) Accounting Treatment. The information contained in the
sections entitled "SUMMARY" and "SPECIAL FACTORS-Accounting
Treatment of the Merger" in the proxy statement is
incorporated herein by reference.
(a)(2)(vii) Income Tax Consequences. The information contained in the
sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS
ABOUT THE MERGER," "SUMMARY" and "SPECIAL FACTORS-Material
U.S. Federal Income Tax Consequences" in the proxy statement
is incorporated herein by reference.
(c) Different Terms. The information contained in the sections
entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT
THE MERGER," "SUMMARY," "SPECIAL FACTORS-Effects of the
Merger" and "-Interests of Il Fornaio Directors and Officers
in the Merger" in the proxy statement is incorporated herein
by reference.
(d) Appraisal Rights. The information contained in the sections
entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY"
and "SPECIAL FACTORS-Appraisal Rights" in the proxy statement
is incorporated herein by reference.
(e) Provisions For Unaffiliated Security Holders. The information
contained in the sections entitled "THE SPECIAL MEETING-Record
Date and Voting Information" and "SPECIAL FACTORS-Appraisal
Rights" in the proxy statement is incorporated herein by
reference.
(f) Eligibility for Listing or Trading. Not applicable.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a) Transactions. None.
4.
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(b),(c) Significant Corporate Events; Negotiations or Contacts. The
information contained in the sections entitled "SUMMARY TERM
SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY,"
"SPECIAL FACTORS-Background of the Merger," "-Effects of the
Merger," "-Interests of Il Fornaio Directors and Officers in
the Merger" and "COMMON STOCK PURCHASE INFORMATION" in the
proxy statement is incorporated herein by reference.
(e) Agreements Involving the Subject Company's Securities. The
information contained in the sections entitled "SUMMARY TERM
SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY,"
"SPECIAL FACTORS-Background of the Merger," "-Effects of the
Merger," "-Interests of Il Fornaio Directors and Officers in
the Merger" and "THE MERGER AGREEMENT" in the proxy statement
is incorporated herein by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(b) Use of Securities Acquired. The information contained in the
sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS
ABOUT THE MERGER," "SUMMARY," "SPECIAL FACTORS-Effects of the
Merger" and "THE MERGER AGREEMENT" in the proxy statement is
incorporated herein by reference.
(c) Plans. The information contained in the sections entitled
"SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE
MERGER," "SUMMARY," "SPECIAL FACTORS-Effects of the Merger,"
"-Interests of Il Fornaio Directors and Officers in the
Merger," "-Merger Financing" and "THE MERGER AGREEMENT" in the
proxy statement is incorporated herein by reference.
ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS.
(a),(c) Purposes; Reasons. The information contained in the
sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER,"
"SUMMARY," "SPECIAL FACTORS-Background of the Merger,"
"-Recommendation of the Board of Directors; Fairness of the
Merger" and "-Purpose and Structure of the Merger" in the
proxy statement is incorporated herein by reference.
(b) Alternatives. The information contained in the sections
entitled "SPECIAL FACTORS-Background of the Merger" and
"-Recommendation of the Board of Directors; Fairness of the
Merger" in the proxy statement is incorporated herein by
reference.
(d) Effects. The information contained in the sections entitled
"SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE
MERGER," "SUMMARY," "SPECIAL FACTORS-Recommendation of the
Board of Directors; Fairness of the Merger," "-Effects of the
Merger," "-Interests of Il Fornaio Directors and Officers in
the Merger," "-Estimated Fees and Expenses of the Merger,"
"-Material U.S. Federal Income Tax Consequences" and "THE
MERGER AGREEMENT" in the proxy statement is incorporated
herein by reference.
ITEM 8 FAIRNESS OF THE TRANSACTION.
(a),(b) Fairness; Factors Considered in Determining Fairness. The
information contained in the sections entitled "QUESTIONS AND
ANSWERS ABOUT THE MERGER,"
5.
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"SUMMARY," "SPECIAL FACTORS-Background of the Merger,"
"-Recommendation of the Board of Directors; Fairness of the
Merger," "-Purpose and Structure of the Merger" and "-Opinion
of Financial Advisor to the Special Committee" in the proxy
statement, and Appendix B to the proxy statement, "Opinion of
Evercore Partners," is incorporated herein by reference.
(c) Approval of Security Holders. The information contained in the
sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS
ABOUT THE MERGER," "SUMMARY," "THE SPECIAL MEETING-Record Date
and Voting Information," "SPECIAL FACTORS-Recommendation of
the Board of Directors; Fairness of the Merger," "THE MERGER
AGREEMENT-Conditions to Completing the Merger" and
"-Termination" in the proxy statement is incorporated herein
by reference.
(d) Unaffiliated Representative. The information contained in
the section entitled "SPECIAL FACTORS-Recommendation of
the Board of Directors; Fairness of the Merger" in the proxy
statement is incorporated herein by reference.
(e) Approval of Directors. The information contained in the
sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER,"
"SUMMARY," "SPECIAL FACTORS-Background of the Merger" and
"-Recommendation of the Board of Directors; Fairness of the
Merger" in the proxy statement is incorporated herein by
reference.
(f) Other Offers. The information contained in the sections
entitled "SPECIAL FACTORS-Background of the Merger" and
"-Recommendation of the Board of Directors; Fairness of the
Merger" in the proxy statement is incorporated herein by
reference.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS.
(a)-(c) Report, Opinion, or Appraisal; Preparer and Summary of the
Report; Availability of Documents. The information contained
in the sections entitled "SUMMARY," "SPECIAL
FACTORS-Background of the Merger," "-Recommendation of the
Board of Directors; Fairness of the Merger," "-Opinion of
Financial Advisor to the Special Committee" and "WHERE
STOCKHOLDERS CAN FIND MORE INFORMATION" in the proxy
statement, and Appendix B to the proxy statement, "Opinion of
Evercore Partners," is incorporated herein by reference.
ITEM 10. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
(a),b),(d) Source of Funds; Conditions; Borrowed Funds. The information
contained in the sections entitled "SUMMARY" and "SPECIAL
FACTORS-Merger Financing" in the proxy statement is
incorporated herein by reference.
(c) Expenses. The information contained in the sections entitled
"SUMMARY," "THE SPECIAL MEETING-Expenses of Proxy
Solicitation" and "SPECIAL FACTORS-Estimated Fees and Expenses
of the Merger" in the proxy statement is incorporated herein
by reference.
ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
6.
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(a) Securities Ownership. The information contained in the
section "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT" in the proxy statement is incorporated herein by
reference.
(b) Securities Transactions. None.
ITEM 12. THE SOLICITATION OR RECOMMENDATION.
(d) Intent to Tender or Vote in a Going-Private Transaction. The
information contained in the sections entitled "SUMMARY TERM
SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SUMMARY,"
"THE SPECIAL MEETING-Record Date and Voting Information" and
"SPECIAL FACTORS-Interests of Il Fornaio Directors and
Officers in the Merger" in the proxy statement is incorporated
herein by reference.
(e) Recommendations to Others. The information contained in the
sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER,"
"SUMMARY" and "SPECIAL FACTORS-Recommendation of the Board of
Directors; Fairness of the Merger" in the proxy statement is
incorporated herein by reference.
ITEM 13. FINANCIAL STATEMENTS.
(a) Financial Information. The information contained in the
sections entitled "IL FORNAIO SELECTED HISTORICAL FINANCIAL
DATA" and "WHERE STOCKHOLDERS CAN FIND MORE INFORMATION" in
the proxy statement is incorporated herein by reference,
including Item 8, "Financial Statements and Supplementary
Data," of Il Fornaio's most recent Annual Report on Form 10-K
and Item 1, "Financial Statements," of Il Fornaio's most
recent Quarterly Report on Form 10Q/A.
(b) Pro Forma Information. Not applicable.
ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
(a),(b) Solicitations or Recommendations; Employees and Corporate
Assets. The information contained in the sections entitled
"SUMMARY," "THE SPECIAL MEETING-Expenses of Proxy
Solicitation," "SPECIAL FACTORS-Background of the Merger,"
"-Estimated Fees and Expenses of the Merger" and "-Opinion of
Financial Advisor to the Special Committee" in the proxy
statement, and Appendix B to the proxy statement, "Opinion of
Evercore Partners," is incorporated herein by reference.
ITEM 15. ADDITIONAL INFORMATION.
(b) Other Material Information. The information contained in the
sections entitled "SUMMARY" and "SPECIAL FACTORS-Litigation
Challenging the Merger" in the proxy statement is incorporated
herein by reference.
ITEM 16. EXHIBITS.
(a) Preliminary proxy statement on Schedule 14A filed with the
Securities and Exchange Commission on January 10, 2001
(incorporated herein by reference to the proxy statement).
(b)(1) Commitment letter from Fleet National Bank to BRS, dated
November 3, 2000.
(b)(2) Commitment letter from BancBoston Capital, Inc. to BRS, dated
November 3, 2000.
7.
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(c)(1) Opinion of Evercore Partners, dated November 14, 2000
(incorporated herein by reference to Appendix B to the proxy
statement).
(c)(2) Fairness Opinion Presentation of Evercore Partners to the
Special Committee of the Il Fornaio Board of Directors,
presented on November 14, 2000.
(d)(1) Agreement and Plan of Merger, dated as of November 15, 2000,
as amended as of January 9, 2001, between Il Fornaio and
Newco (incorporated herein by reference to Appendix A to the
proxy statement).
(d)(2) Voting Agreement, dated as of November 15, 2000, as amended as
of January 9, 2001, by and among Newco and the continuing
stockholders.
(d)(3) Securities Purchase and Contribution Agreement, as amended as
of January 9, 2001, dated as of November 15, 2000, by and
among Newco, BRS and the continuing stockholders.
(f) Section 262 of the Delaware General Corporation Law
(incorporated herein by reference to Appendix C to the proxy
statement).
(g) Not applicable.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING INFORMATION
This Schedule 13E-3 includes and incorporates by reference statements
that are not historical facts. These forward-looking statements are based on our
current estimates and assumptions and, as such, involve uncertainty and risk.
Forward-looking statements include the information concerning our possible or
assumed future results of operations and also include those preceded or followed
by the words "anticipates," "believes," "estimates," "expects," "should,"
"could," "targets" and "may" or similar expressions.
The forward-looking statements are not guarantees of future
performance, and actual results may differ materially from those contemplated by
such forward-looking statements. In addition to the factors discussed in the
proxy statement, including those discussed in "Special Factors-Background of the
Merger," other factors that could cause actual results to differ materially
include changes in the cost of food and labor, the performance of new
restaurants, potentially adverse weather conditions, the impact of potential
health and regulatory developments, the loss of key personnel, competitive
factors, potential liabilities associated with long-term leases, changes in
consumer preferences, Il Fornaio's ability to execute its business strategy,
fluctuations in inventory and general and administrative expenses, and general
economic conditions. In addition, Il Fornaio's plans for new restaurant
locations and timing of openings depend upon, among other things, successful
completion of lease negotiations, timely project development and restaurant
construction, obtaining appropriate regulatory approvals, management of costs
and recruitment of qualified operating personnel. These and other factors are
discussed in the documents that we incorporate by reference into the proxy
statement.
Except to the extent required under the federal securities laws, we do
not intend to update or revise the forward-looking statements to reflect
circumstances arising after the date of the preparation of the forward-looking
statements.
SIGNATURE
After due inquiry and to the best of our knowledge and belief, we
certify that the information set forth in this statement is true, complete and
correct.
8.
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Dated: January 10, 2001
IL FORNAIO (AMERICA) CORPORATION
By /s/ Michael J. Hislop
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Name: Michael J. Hislop
Title: President and Chief Executive Officer
9.
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EXHIBIT INDEX
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Exhibit
Number Description
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(a) Preliminary proxy statement on Schedule 14A filed with the
Securities and Exchange Commission on January 10, 2001
(incorporated herein by reference to the proxy statement).
(b)(1) Commitment letter from Fleet National Bank to BRS, dated
November 3, 2000.
(b)(2) Commitment letter from BancBoston Capital, Inc. to BRS, dated
November 3, 2000.
(c)(1) Opinion of Evercore Partners, dated November 14, 2000
(incorporated herein by reference to Appendix B to the proxy
statement).
(c)(2) Fairness Opinion Presentation of Evercore Partners to the
Special Committee of the Il Fornaio Board of Directors,
presented on November 14, 2000.
(d)(1) Agreement and Plan of Merger, dated as of November 15, 2000,
as amended as of January 9, 2001, between Il Fornaio and
Newco (incorporated herein by reference to Appendix A to the
proxy statement).
(d)(2) Voting Agreement, dated as of November 15, 2000, as amended as
of January 9, 2001, by and among Newco and the continuing
stockholders.
(d)(3) Securities Purchase and Contribution Agreement, dated as of
November 15, 2000, as amended as of January 9, 2001, by and
among Newco, BRS and the continuing stockholders.
(f) Section 262 of the Delaware General Corporation Law
(incorporated herein by reference to Appendix C to the proxy
statement).
(h) Not applicable.
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10.
