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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
TO
SCHEDULE 13E-3
(RULE 13E-3 TRANSACTION STATEMENT
PURSUANT TO SECTION 13(E) OF THE
SECURITIES EXCHANGE ACT OF 1934)
------------------------
DAVCO RESTAURANTS, INC.
(Name of the Issuer)
DAVCO RESTAURANTS, INC.
DAVCO ACQUISITION HOLDING INC.
DAVCO MERGER SUB INC.
RONALD D. KIRSTIEN
HARVEY ROTHSTEIN
CITICORP VENTURE CAPITAL, LTD.
(Name of Person(s) Filing Statement)
COMMON STOCK, PAR VALUE $.001 PER SHARE
(Title of Class of Securities)
238 330 10 4
(CUSIP Number of Class of Securities)
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<S> <C>
G. DANIEL O'DONNELL, ESQ. JOSHUA N. KORFF, ESQ.
DECHERT PRICE & RHOADS KIRKLAND & ELLIS
BELL ATLANTIC TOWER CITICORP CENTER
1717 ARCH STREET 153 EAST 53RD STREET
PHILADELPHIA, PENNSYLVANIA 19103 NEW YORK, NEW YORK 10022
(215) 994-4000 (212) 446-4800
</TABLE>
(Name, Address and Telephone Number of Persons 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 on 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: / /
CALCULATION OF FILING FEE
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TRANSACTION VALUATION(1) AMOUNT OF FILING FEE(2)
$119,143,300 $23,829
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</TABLE>
(1) For purposes of calculation of the filing fee only. Assumes the purchase, at
a purchase price of $20.00 per share of Common Stock, of 5,957,165 shares of
Common Stock of the Issuer, representing all of such Common Stock
outstanding on a fully diluted basis (assuming the exercise of options and
warrants to acquire shares of Common Stock and excluding shares of Common
Stock owned by DavCo Acquisition Holding Inc.). The above calculation is
based on the most recent publicly available data for the Issuer.
(2) The amount of the filing fee equals 1/50(th) of 1% of the transaction value.
/X/ Check 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
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<S> <C>
AMOUNT PREVIOUSLY PAID: $23,829 FILING PARTY: DavCo Restaurants, Inc.
FORM OR REGISTRATION NO.: Preliminary Proxy DATE FILED: November 19, 1997
Statement
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INTRODUCTION
This Amendment No. 5 amends and restates the Rule 13E-3 Transaction
Statement on Schedule 13E-3 which was filed with the Securities and Exchange
Commission (the "Commission") on November 19, 1997, and amended on January 15,
1998, February 4, 1998, February 18, 1998 and February 20, 1998, on behalf of
DavCo Restaurants, Inc., a Delaware corporation (the "Company"), DavCo
Acquisition Holding Inc., a Delaware corporation ("DAC"), DavCo Merger Sub Inc.,
a Delaware corporation ("DAC SUB"), Ronald D. Kirstien, Harvey Rothstein and
Citicorp Venture Capital, Ltd., with respect to a merger pursuant to which DAC
SUB was merged with and into the Company (the "Merger") and the Company, as the
surviving corporation in the Merger, became a wholly-owned subsidiary of DAC.
Mr. Kirstien is the President, Chief Executive Officer and Chairman of the Board
of the Company, and is the President and a director of DAC and DAC SUB. Mr.
Rothstein is the Executive Vice President and a director of the Company, and is
Vice President, Secretary and a director of DAC and DAC SUB.
The Merger became effective on April 1, 1998, and was consummated pursuant
to the terms of an Amended and Restated Agreement and Plan of Merger dated as of
October 21, 1997 (the "Merger Agreement") among the Company, DAC and DAC SUB.
Consummation of the Merger was announced by the Company in a press release dated
as of April 3, 1998, a copy of which is included as Exhibit (d)(7) hereto. At
the Special Meeting (the "Special Meeting") of Stockholders of the Company held
on March 24, 1998, holders of over a majority of the outstanding shares of the
Company's common stock entitled to vote adopted the Merger Agreement and
approved the Merger as required under Delaware law. As required by the Company's
Restated Certificate of Incorporation and the Merger Agreement, a majority of
the shares voted at the Special Meeting by Stockholders of the Company other
than the "Affiliated Stockholders" (as defined in the Merger Agreement) and
their affiliates and associates were voted to adopt the Merger Agreement and
approve the Merger. The Company announced the results of the stockholder vote at
the Special Meeting in a press release dated as of March 24, 1998, a copy of
which is included as Exhibit (d)(6) hereto.
Pursuant to Rule 13-e-3(d)(3) under the Securities and Exchange Act of 1934,
as amended, this Amendment No. 5 is the final amendment to Schedule 13E-3.
The following cross-reference sheet is being supplied pursuant to General
Instruction F to Schedule 13E-3 and shows the location of the information
required by Schedule 13E-3 in the definitive Proxy Statement of the Company
previously filed as Exhibit (d)(3) hereto. The information set forth in the
definitive Proxy Statement, including all annexes, schedules and exhibits
thereto, is hereby expressly incorporated by reference as set forth in the
following cross-reference sheet and in the responses to each item of this
Schedule 13E-3, and such responses are qualified in their entirety by the
provisions of the definitive Proxy Statement. The cross-reference sheet
indicates the caption in the definitive Proxy Statement under which the
responses are incorporated herein by reference. If any such item is inapplicable
or the answer thereto is in the negative and is omitted from the definitive
Proxy Statement, it is so indicated in the cross-reference sheet. As indicated
below, certain exhibits previously filed with the Commission as part of the
Schedule 13E-3, Amendment No. 1, Amendment No. 2, Amendment No. 3 and Amendment
No. 4 are omitted from this Amendment No. 5.
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CROSS REFERENCE SHEET
PURSUANT TO GENERAL INSTRUCTION F TO SCHEDULE 13E-3
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<CAPTION>
ALL REFERENCES ARE TO PORTIONS OF
SCHEDULE 13E-3 ITEM THE PROXY STATEMENT WHICH ARE
NUMBER AND CAPTION INCORPORATED HEREIN BY REFERENCE
--------------------------- ----------------------------------------------------------
<C> <S> <C>
1. Issuer and Class of
Security Subject to the
Transaction
(a)........................ Outside Front Cover Page; "INTRODUCTION."
(b)........................ Outside Front Cover Page; "SUMMARY--Record Date; Shares
Entitled to Vote; Quorum;" "INTRODUCTION--Voting at the
Special Meeting."
(c)........................ "SUMMARY--Market Information;" "MARKET PRICES AND
DIVIDENDS ON THE SHARES."
(d)........................ "MARKET PRICES AND DIVIDENDS ON THE SHARES."
(e)........................ Not applicable.
(f)........................ "SECURITY OWNERSHIP OF THE COMPANY;" Schedule I to the
Proxy Statement.
2. Identity and Background
(a)-(d).................... "CERTAIN INFORMATION CONCERNING DAC, DAC SUB AND
AFFILIATES;" "CERTAIN INFORMATION REGARDING THE DIRECTORS
AND EXECUTIVE OFFICERS OF THE COMPANY."
(e)-(f).................... None.
(g)........................ "CERTAIN INFORMATION REGARDING THE DIRECTORS AND EXECUTIVE
OFFICERS OF THE COMPANY."
3. Past Contacts, Transactions
or Negotiations
(a)(1)..................... "SUMMARY--The Merger;" "SPECIAL FACTORS--Interests of
Certain Persons in the Merger;" "THE MERGER--
Indemnification of Directors and Officers;" "CERTAIN
INFORMATION CONCERNING DAC, DAC SUB AND AFFILIATES."
(a)(2)..................... "SUMMARY--The Merger;" "--Background of the Merger;
Fairness of the Merger;" "--Interests of Certain Persons
in the Merger;" "--Conditions to Consummation of the
Merger;" "--Expenses;" "--Financing of the Merger;"
"SPECIAL FACTORS--Background of the Merger;" "--Past
Contacts with Wendy's;" "--Fairness of the Merger;
Recommendation of the Board of Directors; Position of
DAC;" "--Purpose of the Merger;" "--Interests of Certain
Persons in the Merger;" "--Certain Effects of the Merger;"
"THE MERGER;" "FINANCING OF THE MERGER."
</TABLE>
ii
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<TABLE>
<CAPTION>
ALL REFERENCES ARE TO PORTIONS OF
SCHEDULE 13E-3 ITEM THE PROXY STATEMENT WHICH ARE
NUMBER AND CAPTION INCORPORATED HEREIN BY REFERENCE
--------------------------- ----------------------------------------------------------
<C> <S> <C>
(b)........................ "SUMMARY--The Merger;" "--Background of the Merger;
Fairness of the Merger;" "--Interests of Certain Persons
in the Merger;" "--Conditions to Consummation of the
Merger;" "--Expenses;" "--Financing of the Merger;"
"SPECIAL FACTORS--Background of the Merger;" "--Past
Contacts with Wendy's;" "--Fairness of the Merger;
Recommendation of the Board of Directors; Position of
DAC;" "--Purpose of the Merger;" "--Interests of Certain
Persons in the Merger;" "--Certain Effects of the Merger;"
"THE MERGER;" "FINANCING OF THE MERGER."
4. Terms of the Transaction
(a)........................ "SUMMARY;" "INTRODUCTION;" "SPECIAL FACTORS-- Fairness of
the Merger; Recommendation of the Board of Directors;
Position of DAC;" "--Purpose of the Merger;" "--Interests
of Certain Persons in the Merger;" "--Certain Effects of
the Merger;" "--Risk that the Merger Will Not be
Consummated;" "--Certain Risks in the Event of
Bankruptcy;" "THE MERGER;" "FINANCING OF THE MERGER;"
"APPRAISAL RIGHTS."
(b)........................ "SUMMARY;" "INTRODUCTION;" "SPECIAL FACTORS-- Purpose of
the Merger;" "--Interests of Certain Persons in the
Merger;" "--Certain Effects of the Merger;" "THE MERGER;"
"CERTAIN FEDERAL INCOME TAX CONSEQUENCES."
5. Plans or Proposals of the
Issuer or Affiliate
(a)-(b).................... "SPECIAL FACTORS--Background of the Merger;" "--Fairness
of the Merger; Recommendation of the Board of Directors;
Position of DAC;" "--Certain Effects of the Merger;"
"--Plans for the Company After the Merger;" "FINANCING OF
THE MERGER;" "BUSINESS OF THE COMPANY--Recent
Developments."
(c)........................ "SUMMARY--Interests of Certain Persons in the Merger;"
"SPECIAL FACTORS--Interests of Certain Persons in the
Merger;" "--Certain Effects of the Merger;" "THE MERGER--
Effective Time of the Merger;" "CERTAIN INFORMATION
CONCERNING DAC, DAC SUB AND AFFILIATES;" "CERTAIN
INFORMATION REGARDING THE DIRECTORS AND EXECUTIVE OFFICERS
OF THE COMPANY."
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
ALL REFERENCES ARE TO PORTIONS OF
SCHEDULE 13E-3 ITEM THE PROXY STATEMENT WHICH ARE
NUMBER AND CAPTION INCORPORATED HEREIN BY REFERENCE
--------------------------- ----------------------------------------------------------
<C> <S> <C>
(d)-(e).................... "SUMMARY--Interests of Certain Persons in the Merger;"
"--Expenses;" "--Financing of the Merger;" "SPECIAL
FACTORS--Purpose of the Merger;" "--Interests of Certain
Persons in the Merger;" "--Certain Effects of the Merger;"
"--Plan for the Company After the Merger;" "--Certain
Risks in the Event of Bankruptcy;" "THE MERGER;"
"FINANCING OF THE MERGER;" "MARKET PRICES AND DIVIDENDS ON
THE SHARES;" "SECURITY OWNERSHIP OF THE COMPANY."
(f)-(g).................... "SPECIAL FACTORS--Certain Effects of the Merger;"
"ADDITIONAL AVAILABLE INFORMATION."
6. Source and Amounts of Funds
or Other Considerations
(a)........................ "SUMMARY--Financing of the Merger;" "FINANCING OF THE
MERGER."
(b)........................ "SUMMARY--Expenses;" "THE MERGER--Expenses;" "FINANCING OF
THE MERGER."
(c)........................ "SUMMARY--Financing of the Merger;" "FINANCING OF THE
MERGER."
(d)........................ Not applicable.
7. Purpose(s), Alternatives,
Reasons and Effects
(a)-(c).................... "SUMMARY;" "SPECIAL FACTORS--Background of the Merger;"
"--Past Contacts with Wendy's;" "--Fairness of the Merger;
Recommendation of the Board of Directors; Position of
DAC;" "--Purpose of the Merger;" "--Interests of Certain
Persons in the Merger;" "--Certain Effects of the Merger;"
"CERTAIN INFORMATION CONCERNING DAC, DAC SUB AND
AFFILIATES."
(d)........................ "SUMMARY;" "INTRODUCTION--Voting at the Special Meeting;"
"--Proxies;" "SPECIAL FACTORS--Fairness of the Merger;
Recommendation of the Board of Directors; Position of
DAC;" "--Opinion of Financial Advisor;" "--Purpose of the
Merger;" "--Interests of Certain Persons in the Merger;"
"--Certain Effects of the Merger;" "--Plans for the
Company After the Merger;" "--Certain Litigation;" "THE
MERGER;" "FINANCING OF THE MERGER;" "CERTAIN FEDERAL
INCOME TAX CONSEQUENCES;" "APPRAISAL RIGHTS;" "CERTAIN
INFORMATION CONCERNING DAC, DAC SUB AND AFFILIATES."
</TABLE>
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<TABLE>
<CAPTION>
ALL REFERENCES ARE TO PORTIONS OF
SCHEDULE 13E-3 ITEM THE PROXY STATEMENT WHICH ARE
NUMBER AND CAPTION INCORPORATED HEREIN BY REFERENCE
--------------------------- ----------------------------------------------------------
<C> <S> <C>
8. Fairness of the Transaction
(a)-(b).................... "SUMMARY--Recommendation of the Board of Directors;"
"--Background of the Merger; Fairness of the Merger;"
"--Opinion of Financial Advisor;" "SPECIAL
FACTORS--Background of the Merger;" "--Past Contacts with
Wendy's;" "--Fairness of the Merger; Recommendation of the
Board of Directors; Position of DAC;" "--Opinion of
Financial Advisor;" "--Interests of Certain Persons in the
Merger."
(c)........................ "SUMMARY--Vote Required to Approve the Merger Agreement;"
"--Background of the Merger; Fairness of the Merger;"
"INTRODUCTION--Voting at the Special Meeting;"
"--Proxies;" "SPECIAL FACTORS--Fairness of the Merger;
Recommendation of the Board of Directors; Position of
DAC;" "THE MERGER--Stockholder Adoption of the Merger
Agreement;" "--Conditions to Consummation of the Merger."
(d)........................ "SPECIAL FACTORS--Fairness of the Merger; Recommendation
of the Board of Directors; Position of DAC."
(e)........................ "SUMMARY--Interests of Certain Persons in the Merger;"
"SPECIAL FACTORS--Background of the Merger;" "--Fairness
of the Merger; Recommendation of the Board of Directors;
Position of DAC;" "--Interests of Certain Persons in the
Merger."
(f)........................ "SUMMARY--Background of the Merger; Fairness of the
Merger;" "SPECIAL FACTORS--Background of the Merger;"
"--Past Contacts with Wendy's;" "--Fairness of the Merger;
Recommendation of the Board of Directors; Position of
DAC."
9. Reports, Opinions,
Appraisals and Certain
Negotiations
(a)-(c).................... "SUMMARY--Background of the Merger; Fairness of the
Merger;" "--Opinion of Financial Advisor;" "SPECIAL
FACTORS--Background of the Merger;" "--Fairness of the
Merger; Recommendation of the Board of Directors; Position
of DAC;" "--Opinion of Financial Advisor;" "ADDITIONAL
AVAILABLE INFORMATION;" "Annex B to the Proxy Statement."
10. Interest in Securities of
the Issuer
(a)-(b).................... "SUMMARY--Interests of Certain Persons in the Merger;"
"INTRODUCTION--Voting at the Special Meeting;" "SPECIAL
FACTORS--Purpose of the Merger;" "--Interests of Certain
Persons in the Merger;" "CERTAIN INFORMATION CONCERNING
DAC, DAC SUB AND AFFILIATES;" "CERTAIN TRANSACTIONS IN THE
COMMON STOCK;" "SECURITY OWNERSHIP OF THE COMPANY."
</TABLE>
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<TABLE>
<CAPTION>
ALL REFERENCES ARE TO PORTIONS OF
SCHEDULE 13E-3 ITEM THE PROXY STATEMENT WHICH ARE
NUMBER AND CAPTION INCORPORATED HEREIN BY REFERENCE
--------------------------- ----------------------------------------------------------
<C> <S> <C>
11. Contracts, Arrangements or "SUMMARY;" "SPECIAL FACTORS--Background of the Merger;"
Understandings with Respect "--Purpose of the Merger;" "--Interests of Certain Persons
to the Issuer's in the Merger;" "--Certain Effects of the Merger;" "THE
Securities................. MERGER;" "FINANCING OF THE MERGER;" "CERTAIN INFORMATION
CONCERNING DAC, DAC SUB AND AFFILIATES;" "SECURITY
OWNERSHIP OF THE COMPANY."
12. Present Intention and
Recommendation of Certain
Persons with Regard to the
Transaction
(a)-(b).................... "INTRODUCTION--Voting at the Special Meeting;"
"--Proxies;" "SPECIAL FACTORS--Fairness of the Merger;
Recommendation of the Board of Directors; Position of
DAC;" "--Purpose of the Merger."
13. Other Provisions of the
Transaction
(a)........................ "SUMMARY--Appraisal Rights;" "APPRAISAL RIGHTS;" "Annex C
to the Proxy Statement."
(b)........................ Not applicable.
(c)........................ Not applicable.
14. Financial Information
(a)-(b).................... "SELECTED HISTORICAL FINANCIAL DATA OF THE COMPANY;"
"INDEX TO CONSOLIDATED FINANCIAL STATEMENTS."
15. Persons and Assets
Employed, Retained or
Utilized
(a)........................ "SUMMARY--Interests of Certain Persons in the Merger;"
"--Expenses;" "--Financing of the Merger;"
"INTRODUCTION--Voting at the Special Meeting;"
"--Proxies;" "SPECIAL FACTORS--Background of the Merger;"
"--Opinion of Financial Advisor;" "--Interests of Certain
Persons in the Merger;" "FINANCING OF THE MERGER;"
"CERTAIN INFORMATION CONCERNING DAC, DAC SUB AND
AFFILIATES."
(b)........................ "INTRODUCTION--Voting at the Special Meeting;"
"--Proxies."
16. Additional Information..... Proxy Statement.
17. Material to be Filed as
Exhibits
(a)--(f)................... Not applicable.
</TABLE>
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ITEM 1. ISSUER AND CLASS OF SECURITY SUBJECT TO THE TRANSACTION.
(a) The information concerning the Issuer and its principal executive office
set forth on the cover page to the Proxy Statement and in the section entitled
"INTRODUCTION," is incorporated herein by reference.
(b) The information concerning the shares of Common Stock, par value $.001
per share, of the Issuer (the "Shares") set forth on the cover page to the Proxy
Statement and in the sections entitled "SUMMARY--Record Date; Shares Entitled to
Vote; Quorum" and "INTRODUCTION--Voting at the Special Meeting" is incorporated
herein by reference.
(c) The information concerning the principal market in which the Shares are
traded set forth in the sections entitled "SUMMARY--Market Information" and
"MARKET PRICES AND DIVIDENDS ON THE SHARES" is incorporated herein by reference.
(d) The information set forth in the section entitled "MARKET PRICES AND
DIVIDENDS" is incorporated herein by reference.
(e) Not applicable.
(f) The information concerning purchases of Shares by the Company set forth
in Schedule I to the Proxy Statement is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a), (b), (e) and (f) The persons filing this Statement are DavCo
Restaurants, Inc. (the issuer of the class of equity securities that is the
subject of the Rule 13e-3 transaction), DavCo Acquisition Holding Inc., a
Delaware corporation ("DAC"), DavCo Merger Sub Inc., a Delaware corporation and
a wholly owned subsidiary of DAC ("DAC Sub"), Ronald D. Kirstien, Harvey
Rothstein and Citicorp Venture Capital, Ltd., a New York corporation ("CVC").
DAC and DAC Sub are newly formed corporations organized by Mr. Kirstien, Mr.
Rothstein and CVC for the purpose of effecting the 13E-3 transaction described
herein. CVC is an equity investment firm. Each of Mr. Kirstien, Mr. Rothstein,
DAC and DAC Sub has an address of 1657 Crofton Boulevard, Crofton, Maryland
21114 and CVC's address is 399 Park Avenue, 14th Floor-- Zone 4, New York, New
York 10043. None of the Company, DAC, DAC Sub, Mr. Kirstien, Mr. Rothstein and
CVC (i) during the last five years, has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors), or (ii) during the last
five years, was a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding was or is
subject to a judgment, decree or final order enjoining further violations of, or
prohibiting activities, subject to, federal or state securities laws or finding
any violation of such laws.
(c), (d) and (g) The information concerning DAC, DAC Sub, Mr. Kirstien and
Mr. Rothstein set forth in the sections entitled "CERTAIN INFORMATION CONCERNING
DAC, DAC SUB AND AFFILIATES" and "CERTAIN INFORMATION REGARDING THE DIRECTORS
AND EXECUTIVE OFFICERS OF THE COMPANY" is incorporated herein by reference.
ITEM 3. PAST CONTACTS, TRANSACTION OR NEGOTIATIONS.
(a)(1) The information set forth in the sections entitled "SUMMARY--The
Merger," "SPECIAL FACTORS--Interests of Certain Persons in the Merger," "THE
MERGER--Indemnification of Directors and Officers" and "CERTAIN INFORMATION
CONCERNING DAC, DAC SUB AND AFFILIATES" is incorporated herein by reference.
(a)(2) The information set forth in the sections entitled "SUMMARY--The
Merger," "--Background of the Merger; Fairness of the Merger," "--Interests of
Certain Persons in the Merger," "--Conditions to
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Consummation of the Merger," "--Expenses," "--Financing of the Merger," "SPECIAL
FACTORS-- Background of the Merger," "--Past Contacts with Wendy's," "--Fairness
of the Merger; Recommendation of the Board of Directors; Position of DAC,"
"--Purpose of the Merger," "--Interests of Certain Persons in the Merger,"
"--Certain Effects of the Merger," "THE MERGER" and "FINANCING OF THE MERGER" is
incorporated herein by reference.
(b) The information set forth in the sections entitled "SUMMARY--The
Merger," "--Background of the Merger; Fairness of the Merger," "--Interests of
Certain Persons in the Merger," "--Conditions to Consummation of the Merger,"
"--Expenses," "--Financing of the Merger," "SPECIAL FACTORS-- Background of the
Merger," "--Past Contacts with Wendy's," "--Fairness of the Merger;
Recommendation of the Board of Directors; Position of DAC," "--Purpose of the
Merger," "--Interests of Certain Persons in the Merger," "--Certain Effects of
the Merger," "THE MERGER" and "FINANCING OF THE MERGER" is incorporated herein
by reference.
ITEM 4. TERMS OF THE TRANSACTION.
(a) The information set forth in the sections entitled "SUMMARY,"
"INTRODUCTION," "SPECIAL FACTORS--Fairness of the Merger; Recommendation of the
Board of Directors; Position of DAC," "--Purpose of the Merger," "--Interests of
Certain Persons in the Merger," "--Certain Effects of the Merger," "--Risk that
the Merger will not be Consummated," "--Certain Risks in the Event of
Bankruptcy," "THE MERGER," "FINANCING OF THE MERGER" and "APPRAISAL RIGHTS" is
incorporated herein by reference.
(b) The information set forth in the sections entitled "SUMMARY,"
"INTRODUCTION," "SPECIAL FACTORS Purpose of the Merger," " Interests of Certain
Persons in the Merger," "--Certain Effects of the Merger," "THE MERGER" and
"CERTAIN FEDERAL INCOME TAX CONSEQUENCES" is incorporated herein by reference.
ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE.
(a)-(b) The information set forth in the sections entitled "SPECIAL
FACTORS--Background of the Merger," "--Fairness of the Merger; Recommendation of
the Board of Directors; Position of DAC," "-- Certain Effects of the Merger,"
"--Plans for the Company After the Merger," "FINANCING OF THE MERGER" and
"BUSINESS OF THE COMPANY--Recent Developments" is incorporated herein by
reference.
(c) The information set forth in the sections entitled "SUMMARY--Interests
of Certain Persons in the Merger," "SPECIAL FACTORS--Interests of Certain
Persons in the Merger," "--Certain Effects of the Merger," "THE
MERGER--Effective Time of the Merger," "CERTAIN INFORMATION CONCERNING DAC, DAC
SUB AND AFFILIATES" and "CERTAIN INFORMATION REGARDING THE DIRECTORS AND
EXECUTIVE OFFICERS OF THE COMPANY" is incorporated herein by reference.
(d)-(e) The information set forth in the sections "SUMMARY--Interests of
Certain Persons in the Merger," "Expenses," "--Financing of the Merger,"
"SPECIAL FACTORS--Purpose of the Merger," "--Interests of Certain Persons in the
Merger," "--Certain Effects of the Merger," "--Plans for the Company After the
Merger," "--Certain Risks in the Event of Bankruptcy," "THE MERGER--General,"
"FINANCING OF THE MERGER," "MARKET PRICES AND DIVIDENDS ON THE SHARES" and
"SECURITY OWNERSHIP OF THE COMPANY" is incorporated herein by reference.
(f)-(g) The information set forth in the sections "SPECIAL FACTORS--Certain
Effects of the Merger" and "ADDITIONAL AVAILABLE INFORMATION" is incorporated
herein by reference.
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ITEM 6. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in the sections entitled "SUMMARY--Financing
of the Merger" and "FINANCING OF THE MERGER" is incorporated herein by
reference.
(b) The information set forth in the sections entitled "SUMMARY--Expenses,"
"THE MERGER-- Expenses" and "FINANCING OF THE MERGER" is incorporated herein by
reference.
(c) The information set forth in the sections entitled "SUMMARY--Financing
of the Merger" and "FINANCING OF THE MERGER" is incorporated herein by
reference.
(d) Not applicable.
ITEM 7. PURPOSE(S), ALTERNATIVES, REASONS AND EFFECTS.
(a)-(c) The information set forth in the sections entitled "SUMMARY,"
"SPECIAL FACTORS-- Background of the Merger," "--Past Contacts with Wendy's,"
"--Fairness of the Merger; Recommendation of the Board of Directors; Position of
DAC," "--Purpose of the Merger," "--Interests of Certain Persons in the Merger,"
"--Certain Effects of the Merger" and "CERTAIN INFORMATION CONCERNING DAC, DAC
SUB AND AFFILIATES" is incorporated herein by reference.
(d) The information set forth in the sections entitled "SUMMARY,"
"INTRODUCTION--Voting at the Special Meeting," "--Proxies," "SPECIAL
FACTORS--Fairness of the Merger; Recommendation of the Board of Directors;
Position of DAC," "--Opinion of Financial Advisor," "--Purpose of the Merger,"
"--Interests of Certain Persons in the Merger," "--Certain Effects of the
Merger," "--Plans for the Company After the Merger," "--Certain Litigation,"
"THE MERGER," "FINANCING OF THE MERGER," "CERTAIN FEDERAL INCOME TAX
CONSEQUENCES," "APPRAISAL RIGHTS" and "CERTAIN INFORMATION CONCERNING DAC, DAC
SUB AND AFFILIATES" is incorporated herein by reference.
ITEM 8. FAIRNESS OF THE TRANSACTION.
(a)-(b) The information set forth in the sections entitled
"SUMMARY--Recommendation of the Board of Directors," "--Background of the
Merger; Fairness of the Merger," "--Opinion of Financial Advisor," "SPECIAL
FACTORS--Background of the Merger," "--Past Contacts with Wendy's," "-- Fairness
of the Merger; Recommendation of the Board of Directors; Position of DAC,"
"--Opinion of Financial Advisor" and "--Interests of Certain Persons in the
Merger" is incorporated herein by reference.
(c) The information set forth in the sections entitled "SUMMARY--Vote
Required to Approve Merger Agreement," "--Background of the Merger; Fairness of
the Merger," "INTRODUCTION-- Voting at the Special Meeting," "--Proxies,"
"SPECIAL FACTORS--Fairness of the Merger; Recommendation of the Board of
Directors; Position of DAC," "THE MERGER--Stockholder Adoption of the Merger
Agreement" and "--Conditions to Consummation of the Merger" is incorporated
herein by reference.
(d) The information set forth in the section entitled "SPECIAL
FACTORS--Fairness of the Merger; Recommendation of the Board of Directors;
Position of DAC" is incorporated herein by reference.
(e) The information set forth in the sections entitled "SUMMARY--Interests
of Certain Persons in the Merger," "SPECIAL FACTORS--Background of the Merger,"
"--Fairness of the Merger; Recommendation of the Board of Directors; Position of
DAC" and "--Interests of Certain Persons in the Merger" is incorporated herein
by reference.
(f) The information set forth in the sections entitled "SUMMARY--Background
of the Merger; Fairness of the Merger," "SPECIAL FACTORS--Background of the
Merger," "--Past Contacts with
ix
<PAGE>
Wendy's" and "--Fairness of the Merger; Recommendation of the Board of
Directors; Position of DAC" is incorporated herein by reference.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND CERTAIN NEGOTIATIONS.
(a)-(c) The information set forth in the sections entitled
"SUMMARY--Background of the Merger; Fairness of the Merger," "--Opinion of
Financial Advisor," "SPECIAL FACTORS--Background of the Merger," "--Fairness of
the Merger; Recommendation of the Board of Directors; Position of DAC," "--
Opinion of Financial Advisor" and "ADDITIONAL AVAILABLE INFORMATION" and in
Annex B to the Proxy Statement is incorporated herein by reference.
ITEM 10. INTEREST IN SECURITIES OF THE ISSUER.
(a)-(b) The information set forth in the sections entitled
"SUMMARY--Interests of Certain Persons in the Merger," "INTRODUCTION--Voting at
the Special Meeting," "SPECIAL FACTORS--Purpose of the Merger," "--Interests of
Certain Persons in the Merger," "CERTAIN INFORMATION CONCERNING DAC, DAC SUB AND
AFFILIATES," "CERTAIN TRANSACTIONS IN THE COMMON STOCK" and "SECURITY OWNERSHIP
OF THE COMPANY" is incorporated herein by reference.
ITEM 11. CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH RESPECT TO THE ISSUER'S
SECURITIES.
The information set forth in the sections entitled "SUMMARY," "SPECIAL
FACTORS--Background of the Merger," "--Purpose of the Merger," "--Interests of
Certain Persons in the Merger," "-- Certain Effects of the Merger," "THE
MERGER," "FINANCING OF THE MERGER," "CERTAIN INFORMATION CONCERNING DAC, DAC SUB
AND AFFILIATES" and "SECURITY OWNERSHIP OF THE COMPANY" is incorporated herein
by reference.
ITEM 12. PRESENT INTENTION AND RECOMMENDATION OF CERTAIN PERSONS WITH REGARD TO
THE TRANSACTION.
(a)-(b) The information set forth in the sections entitled
"INTRODUCTION--Voting at the Special Meeting," "--Proxies," "SPECIAL
FACTORS--Fairness of the Merger; Recommendation of the Board of Directors;
Position of DAC" and "--Purpose of the Merger" is incorporated herein by
reference.
ITEM 13. OTHER PROVISIONS OF THE TRANSACTION.
(a) The information set forth in the sections entitled "SUMMARY--Appraisal
Rights" and "APPRAISAL RIGHTS" and Annex C to the Proxy Statement is
incorporated herein by reference.
(b) Not applicable.
(c) Not applicable.
ITEM 14. FINANCIAL INFORMATION.
(a)-(b) The information set forth in the section entitled "SELECTED
HISTORICAL FINANCIAL DATA OF THE COMPANY" and the Index to Consolidated
Financial Statements in the Proxy Statement is incorporated herein by reference.
ITEM 15. PERSONS AND ASSETS EMPLOYED, RETAINED OR UTILIZED.
(a) The information set forth in the sections entitled "SUMMARY--Interests
of Certain Persons in the Merger," "--Expenses," "--Financing of the Merger,"
"INTRODUCTION--Voting at the Special
x
<PAGE>
Meeting," "--Proxies," "SPECIAL FACTORS--Background of the Merger," "--Opinion
of Financial Advisor," "--Interests of Certain Persons in the Merger,"
"FINANCING OF THE MERGER" and "CERTAIN INFORMATION CONCERNING DAC, DAC SUB AND
AFFILIATES" is incorporated herein by reference.
(b) The information set forth in the sections entitled "INTRODUCTION--Voting
at the Special Meeting" and "--Proxies" is incorporated herein by reference.
ITEM 16. ADDITIONAL INFORMATION.
Proxy Statement.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
(a)(1) Commitment letter dated as of October 17, 1997 from Global Alliance Finance Company,
L.L.C.
(b)(1) Opinion of Equitable Securities Corporation dated November 6, 1997.
(b)(2) Valuation materials prepared for DavCo Restaurants, Inc. by Equitable Securities
Corporation dated October 1997.
(c)(1) Amended and Restated Agreement and Plan of Merger dated as of October 21, 1997,
among the Issuer, DAC and the DAC Sub.
(d)(1) Copy of Letter to Stockholders.
(d)(2) Copy of Notice of Special Meeting of Stockholders.
(d)(3) Definitive Proxy Statement.
(d)(4) Form of Proxy.
(d)(5) Press Release by DavCo Restaurants, Inc., dated as of October 22, 1997.
(d)(6) Press Release by DavCo Restaurants, Inc., dated as of March 24, 1998.
(d)(7) Press Release by DavCo Restaurants, Inc. dated as of April 3, 1998.
(e) Section 262 of the General Corporation Law of the State of Delaware (included as
Annex C to the definitive Proxy Statement, which was previously filed as Exhibit
(d)(3)).
(f) Not applicable.
</TABLE>
xi
<PAGE>
SIGNATURES
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.
<TABLE>
<S> <C> <C>
DAVCO RESTAURANTS, INC.
By: /s/ RONALD D. KIRSTIEN
-----------------------------------------
Ronald D. Kirstien
CHIEF EXECUTIVE OFFICER
AND CHAIRMAN OF THE BOARD
</TABLE>
Dated: April 6 1998
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.
<TABLE>
<S> <C> <C>
DAVCO ACQUISITION HOLDING, INC.
By: /s/ HARVEY ROTHSTEIN
-----------------------------------------
Harvey Rothstein
VICE PRESIDENT
</TABLE>
Dated: April 6, 1998
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.
<TABLE>
<S> <C> <C>
DAVCO MERGER SUB, INC.
By: /s/ HARVEY ROTHSTEIN
-----------------------------------------
Harvey Rothstein
VICE PRESIDENT
</TABLE>
Dated: April 6, 1998
xii
<PAGE>
SIGNATURES
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.
<TABLE>
<S> <C> <C>
By: /s/ RONALD D. KIRSTIEN
-----------------------------------------
Ronald D. Kirstien
</TABLE>
Dated: April 6, 1998
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.
<TABLE>
<S> <C> <C>
By: /s/ HARVEY ROTHSTEIN
-----------------------------------------
Harvey Rothstein
</TABLE>
Dated: April 6, 1998
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.
<TABLE>
<S> <C> <C>
CITICORP VENTURE CAPITAL, LTD.
By: /s/ BYRON L. KNIEF
-----------------------------------------
Byron L. Knief
SENIOR VICE PRESIDENT
</TABLE>
Dated: April 6, 1998
xiii
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. PAGE
- ----------- -------------------------------------------------
<S> <C> <C>
(a)(1) --Commitment Letter, dated as of October 17, *
1997, from Global Alliance Finance Company,
L.L.C.
(b)(1) --Opinion of Equitable Securities Corporation Included as Annex B to the definitive Proxy
dated November 6, 1997. Statement, which was previously filed as Exhibit
(d)(3)
(b)(2) --Valuation materials prepared for DavCo *
Restaurants, Inc. by Equitable Securities
Corporation dated October 1997.
(c)(1) --Amended and Restated Agreement and Plan of Included as Annex A to the definitive Proxy
Merger, dated as October 21, 1997, by and among Statement, which was previously filed as Exhibit
DavCo Acquisition Holding Inc., a Delaware (d)(3)
corporation ("DAC"), DavCo Merger Sub Inc., a
Delaware corporation and a wholly-owned
subsidiary of DAC, and DavCo Restaurants, Inc.
(d)(1) --Copy of Letter to Stockholders. *
(d)(2) --Copy of Notice of Special Meeting of *
Stockholders.
(d)(3) --Proxy Statement. *
(d)(4) --Form of Proxy. *
(d)(5) --Press Release by DavCo Restaurants, Inc., dated *
as of October 22, 1997.
(d)(6) --Press Release by DavCo Restaurants, Inc., dated
as of March 24, 1998.
(d)(7) --Press Release by DavCo Restaurants, Inc., dated
as of April 3, 1998.
(e) --Section 262 of the Delaware General Corporation Included as Annex C to the definitive Proxy
Law, as amended. Statement, which was previously filed as Exhibit
(d)(3).
</TABLE>
- ------------------------
* Previously filed.
xiv
<PAGE>
Exhibit 99(d)(6)
FOR IMMEDIATE RELEASE Contact: David J. Norman
March 24, 1998 (410) 721-3770
Ext. 2120
SHAREHOLDERS APPROVE BUYOUT
(Crofton, Maryland )--DavCo Restaurants, Inc. (ASE:DVC) today announced that
its stockholders adopted a definitive merger agreement with DavCo Acquisition
Holding, Inc., for a merger transaction in which DavCo Acquisition Holding Inc.
would acquire all of DavCo's issued and outstanding shares (other than shares
held by DavCo Acquisition Holding Inc.) for $20 cash per share. A majority of
the stockholders not affiliated with DavCo Acquisition Holding Inc. or its
owners, voted in favor of the proposed merger.
As previously disclosed, DavCo Acquisition Holding Inc. is owned by an
investor group that is headed by Ronald D. Kirstien, the Company's President and
Chief Executive Officer, and Harvey Rothstein, Senior Executive Vice President
of the Company, and includes the Company's principal stockholder, Citicorp
Venture Capital, Ltd., which currently holds approximately 48% of the Company's
outstanding shares, and certain affiliates of CVC.
The merger is subject to certain conditions, including negotiation of final
documents and the receipt of necessary financing. The investor group has
obtained a commitment from Global Alliance Finance Company, L.L.C. to provide up
to $150 million of debt financing to complete the merger, which is expected to
close on or before April 1, 1998.
DavCo Restaurants, Inc. is the largest franchisee of Wendy's International
Inc. The Company operates 184 Wendy's restaurants in Maryland, Northern
Virginia, Washington, D.C., Metropolitan St. Louis, Central Illinois, and
Nashville, Tennessee. The Company also operates 34 Friendly's Restaurants in the
Mid-Atlantic market for a total of 218 restaurants, as well as one Exxon Gas
Station and Convenience Store. In addition, the Company manages 14 Friendly's
Restaurants under a contract with Friendly Ice Cream Corporation. - END-
-END-
<PAGE>
Exhibit 99(d)(7)
FOR IMMEDIATE RELEASE Contact: David J. Norman
April 3, 1998 (410) 721-3770
Ext. 2120
DAVCO MERGER COMPLETED
(Crofton, Maryland )--April 3, 1998--DavCo Restaurants, Inc. (AMEX: DVC)
today announced that its merger with DavCo Merger Sub Inc., a wholly owned
subsidiary of DavCo Acquisition Holding Inc., has been completed. As previously
disclosed, DavCo Acquisition Holding Inc. is owned by an investor group that is
headed by Ronald D. Kirstien, the Company's President and Chief Executive
Officer, and Harvey Rothstein, Senior Executive Vice President of the Company,
and includes the Company's principal stockholder prior to the merger, Citicorp
Venture Capital, Ltd., and certain affiliates of CVC.
As a result of the merger, the Company's former stockholders are entitled to
receive $20.00 in cash per share. The Company will continue as a wholly owned
subsidiary of DavCo Acquisition Holding Inc.
As previously announced, the merger received the approval of the Company's
stockholders at a Special Meeting held on March 24, 1998.
- END-
