-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IKsjG4eoPL3gzctghykdJvpeIXWONFii0DLQAZxNIwzwDynuHM+JGMmtN1VYpt4t 9G5PWFGN6XXhuoai81gcbw== 0001104659-10-002611.txt : 20100122 0001104659-10-002611.hdr.sgml : 20100122 20100122171104 ACCESSION NUMBER: 0001104659-10-002611 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20100122 DATE AS OF CHANGE: 20100122 GROUP MEMBERS: ARTHUR E. LEVINE GROUP MEMBERS: LAUREN B. LEICHTMAN GROUP MEMBERS: LEVINE LEICHTMAN CAPITAL PARTNERS IV-AMICUS FUND, L.P. GROUP MEMBERS: LEVINE LEICHTMAN CAPITAL PARTNERS, INC. GROUP MEMBERS: LLCP PARTNERS IV GP, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: RUBIOS RESTAURANTS INC CENTRAL INDEX KEY: 0001082423 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 330100303 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-57387 FILM NUMBER: 10542686 BUSINESS ADDRESS: STREET 1: 1902 WRIGHT PL STREET 2: STE 300 CITY: CARLSBAD STATE: CA ZIP: 92008 BUSINESS PHONE: 7609298226 MAIL ADDRESS: STREET 1: 1902 WRIGHT PL STREET 2: STE 300 CITY: CARLSBAD STATE: CA ZIP: 92008 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Levine Leichtman Capital Partners IV, L.P. CENTRAL INDEX KEY: 0001438895 IRS NUMBER: 261936690 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 335 NORTH MAPLE DRIVE STREET 2: SUITE 240 CITY: BEVERLY HILLS STATE: CA ZIP: 90210 BUSINESS PHONE: (310) 275-5335 MAIL ADDRESS: STREET 1: 335 NORTH MAPLE DRIVE STREET 2: SUITE 240 CITY: BEVERLY HILLS STATE: CA ZIP: 90210 SC 13D/A 1 a10-2339_1sc13da.htm SC 13D/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 2)

RUBIO’S RESTAURANTS, INC.

(Name of Issuer)

Common Stock, $0.001 Par Value

(Title of Class of Securities)

78116B102

(CUSIP Number)

Steven E. Hartman

Levine Leichtman Capital Partners IV, L.P.

335 N. Maple Drive, Suite 240

Los Angeles, CA 90210

(310) 275-5335

Richard J. Welch, Esq.

Bingham McCutchen LLP

355 South Grand Avenue, 44th Floor

Los Angeles, CA 90071

(213) 680-6499

(Name, Address and Telephone Number of Persons Authorized to

Receive Notices and Communications)

January 22, 2010

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box o.

SCHEDULE 13D

CUSIP No. 78116B102

EXPLANATORY NOTE

This Amendment No. 2 to Schedule 13D (this “Amendment”) reflects changes to the information in the Schedule 13D relating to the common stock, par value $0.001 per share, of Rubio’s Restaurants, Inc., a Delaware corporation, (the “Company”), jointly filed by Levine Leichtman Capital Partners IV, L.P., Levine Leichtman Capital Partners IV-Amicus Fund, L.P., LLCP Partners IV GP, LLC, Levine Leichtman Capital Partners, Inc., Arthur E. Levine and Lauren B. Leichtman (collectively, the “Reporting Persons”) on October 21, 2009, as amended by Amendment No. 1 to Schedule 13D jointly filed by the Reporting Persons on December 28, 2009 (as amended, the “Schedule 13D”). This Amendment is being filed to report that Capital Corp. has entered into a confidentiality agreement with, and delivered a non-binding indication of interest to, the Company’s investment banker.

Each capitalized term used but not otherwise defined herein shall have the meaning assigned to such term in the Schedule 13D. Except as specifically set forth herein, the Schedule 13D remains unmodified.

ITEM 4. Purpose of the Transaction.

Item 4 of the Schedule 13D is hereby amended and restated to read in its entirety as follows:

“On October 13, 2009, Capital Corp. entered into a letter agreement, dated October 13, 2009 (the “Letter Agreement”), with the members of the Meruelo Group. A copy of the Letter Agreement is filed as Exhibit 10.1 to this Schedule 13D and is incorporated herein by reference. In connection with entering into the Letter Agreement, on October 13, 2009, Capital Corp. and the Meruelo Group jointly submitted a letter (the “Proposal Letter”) to the Company outlining a proposal by which the Partnership or an affiliate thereof (“LLCP”) and the Meruelo Group would acquire 100% of the outstanding Common Stock of the Company (excluding the shares of Common Stock held by the Meruelo Group) for a cash purchase price of $8.00 per share (the “Transaction”). The Proposal Letter is attached as Exhibit 10.2 to this Schedule 13D and is incorporated herein by reference. In the Proposal Letter, LLCP and the Meruelo Group requested that the Company enter into a proposed exclusivity agreement (the “Proposed Exclusivity Agreement”) on or before October 20, 2009, pursuant to which the Company would not, among other things, solicit, initiate or encourage the submission of proposals or offers relating to the acquisition of the Company’s securities until the earlier of 45 days after it enters into the Proposed Exclusivity Agreement or the date on which a definitive agreement with respect to the Transaction is entered into. The Proposed Exclusivity Agreement is filed as Exhibit 10.3 to this Schedule 13D and is incorporated herein by reference. Along with the Proposal Letter, LLCP and the Meruelo Group also

submitted to the Company a proposed initial draft Agreement and Plan of Merger (the “Draft Merger Agreement”) for its consideration.

On December 11, 2009, Capital Corp. and the Company’s investment banker, on behalf of the Company, entered into the Confidentiality Agreement filed herewith as Exhibit 10.5 and incorporated herein by reference (the “Confidentiality Agreement”). Among other things, the Confidentiality Agreement contains standstill provisions whereby, except as contemplated by the Transaction, unless specifically invited in writing by the Company, for a period of twelve months from the date of the Confidentiality Agreement, Capital Corp. and its affiliates will not, directly or indirectly (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership of any of the Company’s assets or businesses, or any bank debt, claims or other obligations of the Company, or any securities issued by the Company, or any rights or options to acquire such ownership (other than those currently owned), (ii) seek or propose to influence or control the management or policies of the Company or to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with respect to any securities of the Company, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or (iv) seek or request permission or participate in any effort to do any of the foregoing or make or seek permission to make any public announcement with respect to the foregoing. Notwithstanding the foregoing, the Confidentiality Agreement allows Capital Corp. and its affiliates to make a proposal to the board of directors of the Company with respect to any transaction described in the foregoing clause (i) and may take the actions with respect to such transaction as described in the foregoing clause (ii), if the Company shall have entered into a definitive agreement providing for, or, in the case of clause (y) below, its board of directors shall have recommended in favor of, (x) any direct or indirect acquisition or purchase by any person or group of a majority of the common stock or assets of the Company, (y) any tender offer or exchange offer that if consummated would result in any person or group acquiring a majority of the common stock of the Company or (z) any merger, consolidation, share exchange or other business combination involving the Company which, if consummated, would result in the shareholders of the Company immediately prior to the consummation of such transaction ceasing to own at least a majority of the equity interests in the surviving entity (or any direct or indirect parent of such surviving entity).

As of the date of this Amendment, the Reporting Persons have not received any non-public information from the Company other than any such information that may be contained in the offering memorandum distributed by the Company’s investment banker in connection with its solicitation of indications of interest.

On January 22, 2010, Capital Corp. and the Meruelo Group jointly submitted the non-binding indication of interest filed herewith as Exhibit 10.6 and incorporated herein by reference (the “Indication of Interest”) to the Company’s investment banker in accordance with the procedures for submitting indications of interest established by such investment banker. The Indication of Interest increased the proposed cash purchase price for the Transaction to $8.50 per share and superseded the Proposal Letter in its entirety.

Other than the Confidentiality Agreement, there are no binding agreements between the Reporting Persons and the Company with respect to the Transaction.

LLCP and the Meruelo Group will provide all of the capital needed to close the proposed Transaction other than cash to be provided by the Company. The anticipated source of funds for the Transaction (including estimated expenses of approximately $4.7 million) include (i) approximately $13.3 million in cash from the Meruelo Group, (ii) approximately $3.9 million in cash from LLCP, (iii) approximately $57.5 million in senior and senior subordinated loans from LLCP (collectively, the “Loans”) (See Item 6), and (iv) approximately $5.3 million in funds that will be provided by the Company in the form of cash on hand at the closing of the Transaction. The anticipated principal terms of the Loans are set forth as Annex A and Annex B to the Letter Agreement.

Except for the plans and proposals set forth in the Indication of Interest and otherwise described above, none of the Reporting Persons currently has any plans or proposals that relate to or would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D. The Reporting Persons reserve the right, based on all relevant factors and subject to applicable law, at any time and from time to time, to review or reconsider their position, change their purpose, take other actions (including actions that could involve one or more of the types of transactions or have one or more of the results described in clauses (a) through (j) of Item 4 of Schedule 13D) or formulate and implement plans or proposals with respect to any of the foregoing.”

ITEM 6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer.

The penultimate paragraph of Item 6 of the Schedule 13D is hereby amended and restated to read in its entirety as follows:

“The disclosure in Item 4 of this Schedule 13D regarding the Indication of Interest and the Confidentiality Agreement are incorporated herein by reference.”

ITEM 7. Material to be Filed as Exhibits.

Item 7 of the Schedule 13D is hereby amended and restated in its entirety as follows:

Exhibit		Description

10.1		Letter Agreement, dated October 13, 2009, by and among Levine Leichtman Capital Partners, Inc. and the Meruelo Group (incorporated by reference to Exhibit 10.1 of the Schedule 13D/A filed with the Commission on October 15, 2009 by Alex Meruelo Living Trust and certain other reporting persons (the “Meruelo Schedule 13D/A”)

10.2		Proposal Letter submitted to the Company by the Meruelo Group and Levine Leichtman Capital Partners, Inc. on October 13, 2009 (incorporated by reference to Exhibit 10.2 of the Meruelo Schedule 13D/A)

10.3		Proposed Exclusivity Agreement submitted to the Company by the Meruelo Group and Levine Leichtman Capital Partners, Inc. on October 13, 2009 (incorporated by reference to Exhibit 10.3 of the Meruelo Schedule 13D/A)

10.4		Amendment to Letter Agreement, dated December 23, 2009, by and among Levine Leichtman Capital Partners, Inc. and the Meruelo Group (incorporated by reference to Exhibit 10.4 of the amendment to the Schedule 13D filed by the Reporting Persons on December 28, 2009).

10.5		Confidentiality Agreement, dated December 11, 2009, by and between Levine Leichtman Capital Partners, Inc. and Cowen and Company, LLC, as agent.

10.6		Indication of Interest submitted to the Company by the Meruelo Group and Levine Leichtman Capital Partners, Inc. on January 22, 2010.

99.1		Joint Reporting Agreement, dated October 21, 2009, among Levine Leichtman Capital Partners IV, L.P., Levine Leichtman Capital Partners IV-Amicus Fund, L.P., LLCP Partners IV GP, LLC, Levine Leichtman Capital Partners, Inc., Arthur E. Levine and Lauren B. Leichtman (incorporated by reference to Exhibit 99.1 of the Schedule 13D filed by the Reporting Persons on October 21, 2009)

SIGNATURES

After reasonable 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.

January 22, 2010
	LEVINE LEICHTMAN CAPITAL PARTNERS IV, L.P.,
	a Delaware limited partnership

	By:	LLCP Partners IV GP, LLC,
		a Delaware limited liability company, its General Partner

		By:	Levine Leichtman Capital Partners, Inc.,
			a California corporation, its Manager

		By:	/s/ Steven E. Hartman
			Steven E. Hartman
			Vice President

	LEVINE LEICHTMAN CAPITAL PARTNERS IV-AMICUS FUND, L.P.,
	a Delaware limited partnership

	By:	LLCP Partners IV GP, LLC,
		a Delaware limited liability company, its General Partner

		By:	Levine Leichtman Capital Partners, Inc.,
			a California corporation, its Manager

		By:	/s/ Steven E. Hartman
			Steven E. Hartman
			Vice President

	LLCP PARTNERS IV GP, LLC,
	a Delaware limited liability company

	By:	Levine Leichtman Capital Partners, Inc.,
		a California corporation, its Manager

		By:	/s/ Steven E. Hartman
			Steven E. Hartman
			Vice President

	LEVINE LEICHTMAN CAPITAL PARTNERS, INC.,
	a California corporation

	By:	/s/ Steven E. Hartman
		Steven E. Hartman
		Vice President


	/s/ Arthur E. Levine
	ARTHUR E. LEVINE


	/s/ Lauren B. Leichtman
	LAUREN B. LEICHTMAN

EXHIBIT INDEX

Exhibit		Description

10.5		Confidentiality Agreement, dated December 11, 2009, by and between Levine Leichtman Capital Partners, Inc. and Cowen and Company, LLC, as agent.

10.6		Indication of Interest submitted to the Company by the Meruelo Group and Levine Leichtman Capital Partners, Inc. on January 22, 2010.

EX-10.5 2 a10-2339_1ex10d5.htm EX-10.5

Exhibit 10.5

CONFIDENTIALITY AGREEMENT - COWEN REPRESENTING SELLER

December 11, 2009

Steven E. Hartman

Vice President

Levine Leichtman Capital Partners, Inc.

335 North Maple Drive, Suite 130

Beverly Hills, California 90210

Dear Mr. Hartman,:

Re: Confidential Information and Evaluation Material

Cowen and Company, LLC (“Cowen”), is acting on behalf of Rubio’s Restaurants, Inc. (the “Company”) to explore a possible strategic transaction involving the Company (the “Transaction”). In that connection, you have requested financial and other information concerning the business and affairs of the Company. In consideration of furnishing you and your directors, officers, employees, agents, affiliates, advisors and potential financing sources (including such financing sources’ directors, officers, employees, agents and advisors) (collectively, “Representatives”) such financial and other information, you agree to treat, and to direct your Representatives to treat, such information furnished to you by or on behalf of the Company or its Representatives and all analyses, compilations, studies and other materials containing or reflecting, in whole or in part, any such information (collectively, “Evaluation Material”), as follows:

1. You recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and the damage that could result to the Company if any information contained therein is disclosed to any third party.

2. The term “Evaluation Material” does not include any information which (a) is already lawfully in your possession or known to you, provided that the source of such information is not known by you to be subject to another confidentiality agreement or other obligation of confidentiality with the Company or another party with respect to such information, (b) has been made public other than by acts by you or your Representatives in violation of this agreement or other obligation of confidentiality, (c) becomes available to you on a nonconfidential basis from a source that to your knowledge is entitled to disclose it on a nonconfidential basis, or (d) is independently developed by you without reference to other Evaluation Material.

3. You agree that until the third anniversary of the date hereof the Evaluation Material will be kept confidential and will be used solely for the purpose of evaluating the Transaction or to pursue any transaction

or course of action permitted by Section 10 below (when permitted to do so under Section 10). Until the third anniversary of the date hereof, you agree not to disclose any of the Evaluation Material to any third party, in any manner whatsoever, in whole or in part, without the prior written consent of the Company, except that you may disclose the Evaluation Material or portions thereof to your Representatives who need to know such information (and who agree to use such information solely) for the purpose of evaluating the Transaction, which Representatives shall be informed of the confidential nature of the Evaluation Material and shall agree with you to be bound by the confidentiality provisions of this agreement and not to disclose any of the Evaluation Material to any other party. You shall be responsible for any breach of this agreement by any of your Representatives.

4. Except to the extent required by law, the Company agrees that until the third anniversary of the date hereof any documents and other information (including without limitation any investment proposal letters and term sheets) that you provide to the Company or to any of its Representatives in connection with the Transaction (the “Transaction Material”) will be kept confidential and will be used solely for the purpose of evaluating the Transaction. Except to the extent required by law, until the third anniversary of the date hereof, the Company agrees not to disclose any of the Transaction Material to any third party, in any manner whatsoever, in whole or in part, without your prior written consent, except that the Company may disclose the Transaction Material or portions thereof to its Representatives who need to know such information (and who agree to use such information solely) for the purpose of evaluating the Transaction, which Representatives shall be informed of the confidential nature of the Transaction Material and shall agree with the Company to be bound by the confidentiality provisions of this agreement and not to disclose any of the Transaction Material to any other party. The Company shall be responsible for any breach of this agreement by any of its Representatives.

5. In the event that either party hereto or its Representatives are requested in any proceeding or pursuant to any law or any rule or regulation of any governmental agency or authority to disclose any Evaluation Material or Transaction Material, unless prohibited by applicable law such party will give the other party hereto prompt notice of such request so that such other party may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the provisions of this agreement (and if such other party seeks such an order, the first party will provide such cooperation as such other party shall reasonably request). If, in the absence of a protective order, the first party or its Representatives are nonetheless legally compelled to disclose such Evaluation Material, such first party or its Representatives, as the case may be, will furnish only that portion of the Evaluation Material or Transaction Material which it is advised by

its counsel is legally required, in which case it will not be subject to liability hereunder; provided, however, that it gives such other party written notice of the information to be disclosed as far in advance of its disclosure as is practicable and uses its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded to such information.

6. Without the prior written consent of the Company, neither you nor any of your Representatives will disclose to any person the fact that the Evaluation Material has been made available to you, that discussions or negotiations are taking place concerning a Transaction involving the Company or any of the terms, conditions or other facts with respect to such Transaction, including the status thereof or the subject matter of this agreement, except that you may make any such disclosure which your counsel advises you is legally required, provided that you consult with the Company or its advisors prior to any such required disclosure.

7. You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed as to the matters which are the subject of this letter, (i) that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this letter from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell securities and (ii) that you are familiar with the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder and agree that you will neither use nor cause any party to use, any Evaluation Material in contravention of the Exchange Act or such rules and regulations including Rules 10b-5 and 14e-3.

8. You hereby represent that, as of the date hereof, you and your affiliates and associates (as such terms are defined in Rule 12b-2 under Exchange Act, beneficially own in the aggregate less than 5% of the outstanding voting securities of the Company. For the avoidance of doubt, none of Alex Meruelo, Meruelo Enterprises, Inc., the Alex Meruelo Living Trust, Luis Armona or any of their respective related entities or affiliates shall be considered your affiliate, associate or Representative for any purpose under this agreement.

9. Except as contemplated by the Transaction, unless specifically invited in writing by the Company, for a period of twelve months from the date hereof, you and your affiliates, as defined in Rule 12b-2 under the Exchange Act, will not (and you and they will not assist or encourage others to), directly or indirectly:

(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial

ownership as defined in Rule 13d-3 under the Exchange Act) of any of the Company’s assets or businesses, or any bank debt, claims or other obligations of the Company, or any securities issued by the Company, or any rights or options to acquire such ownership (other than those currently owned) (including from a third party); or

(b) seek or propose to influence or control the management or policies of the Company or to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with respect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do any of the foregoing; or

(c) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing; or

(d) seek or request permission or participate in any effort to do any of the foregoing or make or seek permission to make any public announcement with respect to the foregoing.

10. Notwithstanding paragraph 9, you or your affiliates may make a proposal to the Board of Directors of the Company with respect to any transaction described in paragraph 9(a) and may take the actions with respect to such transaction as described in paragraph 9(c), if the Company shall have entered into a definitive agreement providing for, or, in the case of clause (ii) below, its Board of Directors shall have recommended in favor of, (i) any direct or indirect acquisition or purchase by any person or group of a majority of the common stock or assets of the Company, (ii) any tender offer or exchange offer that if consummated would result in any person or group acquiring a majority of the common stock of the Company or (iii) any merger, consolidation, share exchange or other business combination involving the Company which, if consummated, would result in the shareholders of the Company immediately prior to the consummation of such transaction ceasing to own at least a majority of the equity interests in the surviving entity (or any direct or indirect parent of such surviving entity).

11. In consideration of your covenants herein, the Company agrees to provide to you such Evaluation Material as you reasonably request during the four months following the date of this letter or such longer period as you and the Company continue discussions regarding a Transaction. You agree that except as and to the extent provided in a definitive written agreement with you with respect to the Transaction, neither the Company nor you will be under any legal obligation of any

kind whatsoever with respect to a Transaction by virtue of this or any written or oral expression with respect to a Transaction by any of the Company’s or your directors, officers, employees, agents, advisors or other representatives. All inquiries, requests for information and other communications with the Company shall be made through Owen Hart or another designated individual at Cowen.

12. Upon the Company’s request, you will promptly return to the Company all copies of all Evaluation Material furnished to you or your Representatives by or on behalf of the Company and will destroy all analyses, compilations, summaries, studies and other material prepared by you or your Representatives based in whole or in part on, or otherwise containing or reflecting any of, the Evaluation Material; provided, however, that notwithstanding the foregoing, you and your Representatives may each retain a copy of all Evaluation Material and all such analyses, compilations, summaries, studies and other material in separate files solely to comply with your respective document retention policies. You hereby agree to promptly certify in a letter to the Company that the return required hereunder and such destruction have been accomplished.

13. You understand that except as and to the extent provided in a definitive written agreement with you with respect to the Transaction, when, as and if it is executed and delivered (and subject to the restrictions and conditions specified therein), neither the Company nor any of its Representatives (including Cowen) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material and you agree that neither the Company nor any of its Representatives shall have any liability to you or any other party resulting from any use or reliance on the Evaluation Material.

14. You agree that until the earlier of (a) the consummation of a Transaction between the Company and you or (b) one year from the date hereof, neither you nor any of your affiliates will, without the prior written consent of the Company, (x) solicit to employ any person who is at the time an employee of the Company (provided that a general solicitation made through any publicly distributed media or a general solicitation conducted through a search firm that is not specifically instructed to solicit employees of the Company shall not constitute a violation of this Section 14), or (y) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or customer of the Company for the purposes of obtaining information for use in evaluating a Transaction.

15. The Company acknowledges and agrees that you may be invested in, may invest in or consider investments in companies that compete either directly or indirectly with the Company and that the execution of this letter shall in no way be construed to prohibit or restrict your ability to maintain, make or consider such investments.

16. You and the Company each agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your Representatives or by the Company or its Representatives, and that, in addition to all other remedies, you and the Company shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and you and the Company each further agree to waive, and to use commercially reasonable efforts to cause your respective Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy.

17. No failure or delay by you, the Company or any of your or its Representatives in exercising any right, power or privilege under this agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. No provision of this agreement may be waived, amended or modified, in whole or in part, nor any consent given, except by way of a writing signed by a duly authorized representative of each of you and the Company, which writing specifically refers to this agreement and the provision so amended or modified or for which such waiver or consent is given. In the event that any provision of this agreement shall be deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the agreement shall not in any way be affected or impaired thereby. This agreement is not intended to be a letter of intent or agreement in principle, or otherwise commit or bind the Company or you, to negotiate the terms of the proposed Transaction or to consummate the Transaction contemplated herein.

18. This agreement shall be governed by and construed in accordance with the laws of the State of California, applicable to contracts made and to be performed therein, without giving effect to its conflicts of laws, principles or rules. Each party hereto consents to personal jurisdiction in California and voluntarily submits to the jurisdiction of the courts of California in any action or proceeding with respect to this agreement, including the federal district courts located in California. You agree that you may be served with process at your address set forth on the first page hereof. The parties waive the right to a trial by jury in any dispute arising under this agreement.

19. This agreement and all obligations hereunder shall terminate on the third anniversary of the date hereof (unless earlier terminated pursuant to the terms of this agreement).

Please acknowledge your agreement to the foregoing by countersigning this letter in the place provided below and returning it to Cowen.

		Very truly yours,

		Rubio’s Restaurants, Inc.

		By: COWEN AND COMPANY, LLC
		As Agent


		By:	/s/ Loren Pannier

		Loren Pannier
		Chairman of the Special Committee

Accepted and Agreed to:

Levine Leichtman Capital Partners, Inc.


By:	/s/ Steven E. Hartman

Steven E. Hartman
Vice President

EX-10.6 3 a10-2339_1ex10d6.htm EX-10.6

Exhibit 10.6

January 22, 2009

Rubio’s Restaurants, Inc.

c/o Mr. Owen Hart

Cowen and Company, LLC

555 California Street, Fifth Floor

San Francisco, CA 94104

owen.hart@cowen.com

Dear Owen:

We are pleased to submit this preliminary indication of interest to acquire 100% of the outstanding capital stock of Rubio’s Restaurants, Inc. (“Rubio’s” or the “Company”) for cash consideration of $8.50 per share (the “Purchase Price”). The transaction described in this preliminary indication of interest would be consummated by a group consisting of Alex Meruelo and certain of his affiliates (the “Meruelo Parties”) and Levine Leichtman Capital Partners, Inc., or an affiliate thereof (“LLCP” and, together with the Meruelo Parties, the “Investors”). This preliminary indication of interest is based on the assumption that immediately prior to the closing of the transaction (i) there will be 10,035,077 shares of common stock of the Company outstanding and the Company will not have issued any additional stock options, restricted stock units or similar awards since the date of this letter, (ii) the Company will be debt free, (iii) there will be approximately $7.4 million of cash on the Company’s balance sheet, and (iv) the Company will have adequate working capital to operate the business going forward in the ordinary course.

The Investors (together with cash available at Rubio’s at closing) will provide all of the capital required to fund and close this transaction. There will be no third party financing required to consummate this investment and no “financing contingency.” Furthermore, there are no consents required internally for either LLCP or the Meruelo Parties to fund the transaction. We are highly confident that we can quickly close on the terms set forth herein.

Immediately following the execution of a letter of exclusivity with Rubio’s, we will commence our confirmatory business and legal due diligence investigation of the Company and all of its subsidiaries and affiliates. We believe that within 45 to 60 days from the signing of a letter of exclusivity, we will be able to complete our confirmatory due diligence and negotiate the definitive documentation required to close the transaction.

The Meruelo Parties currently own approximately 11.6% of Rubio’s common stock and represent the Company’s largest non-institutional shareholder. Alex Meruelo is the principal shareholder, Chairman and CEO of the Meruelo Group, a minority owned and operated holding company with vested interests in food services, construction and engineering, real estate and private equity. In 1986, Alex established La Pizza Loca, a quick service restaurant catering to the Hispanic community, expanding it to more than 50 franchised and company owned stores.

Real estate development soon followed and the Meruelo Group now has a diversified portfolio of commercial/retail residential and industrial properties. In 1999, Alex purchased the first of four construction companies and the Meruelo Group now has a presence throughout Southern California. Alex is a founding shareholder and director of Commercial Bank of California, and sits on the board of William Lyon Homes and ExaDigm, Inc.

Levine Leichtman Capital Partners is a Los Angeles, California-based investment firm that manages approximately $5.0 billion of institutional investment capital through private equity partnerships and leveraged loan funds. LLCP is currently making new investments through Levine Leichtman Capital Partners IV, L.P. Successful investments in the restaurant industry include Quizno’s Corporation, Cici’s Pizza and Wetzel’s Pretzels.

While a high level of interest exists in consummating the transaction described above, this letter is not a commitment, a contract, or an offer to enter into a contract and should not be deemed to obligate LLCP or the Meruelo Parties in any manner whatsoever. This preliminary indication of interest should not be relied upon for any reason whatsoever.

This preliminary indication of interest supersedes the proposal letter delivered to the Company’s Board of Directors by the Investors on October 13, 2009, in its entirety.

We look forward to having the opportunity to work with you and the Rubio’s team on this transaction.

Sincerely,


/s/ Alex Meruelo		/s/ Lauren Leichtman
Alex Meruelo		Lauren Leichtman
Chairman and Chief Executive Officer		Chief Executive Officer
Meruelo Group		Levine Leichtman Capital Partners

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