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): JUNE 17, 2007
FRIENDLY ICE CREAM CORPORATION
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 001-13579 04-2053130
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
1855 BOSTON ROAD, WILBRAHAM, MA 01095
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (413) 731-4000
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:
[_] Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[X] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[_] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[_] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On June 17, 2007, the Company entered into an Agreement and Plan of Merger (the
"Merger Agreement") by and among the Company, Freeze Operations Holding Corp.
("Parent") and Freeze Operations, Inc., a wholly owned subsidiary of Parent
("Merger Sub"), pursuant to which, subject to the satisfaction or waiver of the
conditions therein, Merger Sub will merge with and into the Company, with the
Company continuing as the surviving corporation of the Merger (the "Merger").
Upon consummation of the Merger, (i) the Company will become a wholly owned
subsidiary of Parent, (ii) each share of Company common stock issued and
outstanding immediately prior to the consummation of the Merger (other than
shares held in treasury by the Company or held by any wholly-owned subsidiary of
the Company) will be converted into the right to receive $15.50 in cash (the
"Merger Consideration"), (iii) each option to purchase Company common stock that
is outstanding and unexercised immediately prior to the consummation of the
Merger will be canceled and converted into the right to receive an amount in
cash as provided in the Merger Agreement and (iv) each restricted share that is
outstanding immediately prior to the consummation of the Merger will be canceled
and converted into the right to receive, in respect of each underlying share of
Company common stock, the Merger Consideration.
The transaction is conditioned upon clearance under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, approval of the Company stockholders and
other customary closing conditions.
In connection with the Merger, Parent entered into (i) a Stockholders Agreement,
dated as of June 17, 2007, by and between Parent and S. Prestley Blake, (ii) a
Stockholders Agreement, dated as of June 17, 2007, by and between Parent and
Donald N. Smith, (iii) a Stockholders Agreement, dated as of June 17, 2007, by
and between Parent and Kevin Douglas, (iv) a Stockholders Agreement, dated as of
June 17, 2007, by and among Parent, The Lion Fund L.P., Biglari Capital Corp.,
Sardar Biglari, Western Sizzlin Corp. and Philip L. Cooley and (v) a
Stockholders Agreement, dated as of June 17, 2007, by and between Parent and
James E. Vinick (collectively, the "Stockholders Agreements"), pursuant to which
the stockholders parties thereto have agreed to vote their shares of Company
common stock in favor of approval of the Merger Agreement.
The Merger Agreement has been filed as an exhibit to this Current Report on Form
8-K to provide you with information regarding the terms of the agreement and is
not intended to modify or supplement any factual disclosures contained in the
Company's public reports filed with the Securities and Exchange Commission (the
"SEC"). In particular, the Merger Agreement and related summary are not intended
to be, and should not be relied upon as, disclosures regarding any facts and
circumstances relating to the Company. The representations and warranties have
been negotiated with the principal purpose of establishing the circumstances in
which a party may have the right not to close the transaction if the
representations and warranties of the other party prove to be untrue due to a
change in circumstance or otherwise, and allocates risk between the parties,
rather than establishing matters as facts. The representations and warranties
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may also be subject to a contractual standard of materiality different from
those generally applicable to stockholders.
Information set forth in Item 3.03 is incorporated by reference into this Item
1.01
The foregoing description of the Merger Agreement does not purport to be
complete and is qualified in its entirety by reference to such agreement, a copy
of which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
IMPORTANT INFORMATION
This document may be deemed to be solicitation material in respect of the
proposed transaction. In connection with the proposed transaction, the Company
will file with, or furnish, to the SEC all relevant materials, including a proxy
statement on Schedule 14A. SECURITY HOLDERS OF THE COMPANY ARE URGED TO READ ALL
RELEVANT DOCUMENTS FILED WITH OR FURNISHED TO THE SEC, INCLUDING THE COMPANY'S
PROXY STATEMENT WHEN IT BECOMES AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION ABOUT THE PROPOSED TRANSACTION. The final proxy statement will be
mailed to stockholders of the Company. Investors and security holders will be
able to obtain the documents free of charge from the SEC's website, www.sec.gov,
and from the Company's website, www.friendly.com.
The Company and its directors and executive officers and other members of
management and employees may be deemed to participate in the solicitation of
proxies in respect of the proposed transaction. Information regarding the
Company's directors and executive officers is available in the Company's proxy
statement for its 2006 annual meeting of stockholders, which was filed with the
SEC on April 7, 2006, and in the Company's Annual Report on Form 10-K for the
period ended December 31, 2006, which was filed with the SEC on March 6, 2007.
Additional information regarding the interests of such potential participants
will be included in the proxy statement and the other relevant documents filed
with, or furnished to, the SEC when they become available.
ITEM 3.03. MATERIAL MODIFICATIONS TO RIGHTS OF SECURITY HOLDERS.
In connection with the Merger and pursuant to the Merger Agreement, the Company
and The Bank of New York entered into an amendment ("Amendment No. 1") to the
Rights Agreement, dated as of November 19, 1997, by and between the Company and
The Bank of New York (the "Rights Agreement"). Pursuant to Amendment No. 1, the
definition of an Acquiring Person in the Rights Agreement was amended to provide
that Parent, Merger Sub and their respective affiliates and associates (the
"Parent Group") would not become an Acquiring Person as a result of (A) the
execution and delivery of the Merger Agreement, the Stockholders Agreements or
any agreements, arrangements or understandings entered into by the Parent Group
contemplated by the Merger Agreement; (B) the announcement of the Merger
Agreement, the Stockholders Agreements or the Merger; (C) the consummation of
the Merger; or (D) the consummation of the other transactions contemplated by
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the Merger Agreement upon the terms and conditions of the Merger Agreement (each
event described in clauses (A), (B), (C) and (D) is referred to as an "Exempted
Transaction"). In addition, the definitions of Distribution Date, Share
Acquisition Date and Triggering Event (as defined in the Rights Agreement) have
been amended such that none of a Distribution Date, a Share Acquisition Date or
a Triggering Event shall be deemed to occur by virtue, or as a result, of any
Exempted Transaction.
In addition, Amendment No. 1 amends the Rights Agreement to provide that the
Rights (as defined in the Rights Agreement) shall expire on the earliest of (i)
the close of business on the Final Expiration Date (as defined in the Rights
Agreement), (ii) the time at which the Rights are redeemed as provided in the
Rights Agreement, (iii) the time at which all exercisable Rights are exchanged
as provided in the Rights Agreement and (iv) immediately prior to the effective
time of the Merger, but only if such effective time shall occur. Amendment No. 1
also amends the Rights Agreement to provide that the Rights shall be terminated
on the earlier of (i) the Final Expiration Date and (ii) immediately prior to
the effective time of the Merger, but only if such effective time shall occur.
The foregoing description of Amendment No. 1 does not purport to be complete,
and is qualified in its entirety by reference to such amendment, a copy of which
is filed as Exhibit 4.1 hereto, and is incorporated herein by reference.The
foregoing description of Amendment No. 1 does not purport to be complete, and is
qualified in its entirety by reference to such amendment, a copy of which is
filed as Exhibit 4.1 hereto, and is incorporated herein by reference.
ITEM 8.01. OTHER EVENTS.
On June 17, 2007, the Company announced that it had entered into the Merger
Agreement by press release, a copy of which is attached hereto as Exhibit 99.1,
and is incorporated herein by reference.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
Exhibit No. Description
----------- -----------
Exhibit 2.1 Agreement and Plan of Merger, dated as of June 17, 2007, by and
among Friendly Ice Cream Corporation, Freeze Operations Holding
Corp. and Freeze Operations, Inc.
Exhibit 4.1 Amendment No. 1, dated as of June 17, 2007, to the Rights
Agreement, dated as of November 19, 1997, by and between
Friendly Ice Cream Corporation and The Bank of New York
Exhibit 99.1 Press release dated as of June 17, 2007, issued by Friendly Ice
Cream Corporation
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: June 19, 2007
FRIENDLY ICE CREAM CORPORATION
By: /s/ Paul V. Hoagland
------------------------------
Paul V. Hoagland
Executive Vice President of Administration
and Chief Financial Officer
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EXHIBIT INDEX
Exhibit No. Description
----------- -----------
Exhibit 2.1 Agreement and Plan of Merger, dated as of June 17, 2007, by and
among Friendly Ice Cream Corporation, Freeze Operations Holding
Corp. and Freeze Operations, Inc.
Exhibit 4.1 Amendment No. 1, dated as of June 17, 2007, to the Rights
Agreement, dated as of November 19, 1997, by and between
Friendly Ice Cream Corporation and The Bank of New York
Exhibit 99.1 Press release dated as of June 17, 2007, issued by Friendly Ice
Cream Corporation
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