SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
Sbarro, Inc.
---------------
(Name of Issuer)
Common Stock, par value $.01 per share
----------------------------------------
(Title of class of securities)
805844-10-7
---------------
(CUSIP Number)
Richard A. Rubin, Esq.
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036
212-704-6000
-------------------------------------
(Person Authorized to Receive Notices and Communications)
November 24, 1998
-------------------
(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(b)(3) or (4), check the following box [ ]
<PAGE>
CUSIP No. 805844 10 7 13D Page 2 of 14 Pages
1 NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Mario Sbarro
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS
SC,OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 1,828,063
OWNED BY
EACH 8 SHARED VOTING POWER
REPORTING
PERSON 2,504,074
WITH 9 SOLE DISPOSITIVE POWER
- ---------------------
1,828,063
10 SHARED DISPOSITIVE POWER
2,504,074
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,332,137 (may be deemed to beneficially own all shares beneficially
owned by each member of the group, or 7,705,517 shares)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.8% (may be deemed beneficially own all shares beneficially owned
by each member of the group, or 36.4%)
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 805844 10 7 13D Page 3 of 14 Pages
1 NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Anthony Sbarro
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
SC,OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 1,398,800
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 0
PERSON 9 SOLE DISPOSITIVE POWER
WITH
- ------------------ 1,398,800
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,398,800 (may be deemed to beneficially own all shares beneficially
owned by each member of the group, or 7,705,517 shares)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.8% (may be
deemed to beneficially own all shares beneficially owned by each
member of the group, or 36.4%)
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 805844 10 7 13D Page 4 of 14 Pages
1 NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Joseph Sbarro
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
SC,OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 1,974,580
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 0
PERSON
WITH 9 SOLE DISPOSITIVE POWER
- ---------------------
1,974,580
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,974,580 (may be deemed to beneficially own all shares beneficially
owned by each member of the group, or 7,705,517 shares)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.5% (may be deemed to beneficially own all shares beneficially
owned by each member of the group, or 36.4%)
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 805844 10 7 13D Page 5 of 14 Pages
1 NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Franklin Montgomery, as co-trustee of the Trust of Carmela Sbarro
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
SC,OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 2,497,884
PERSON 9 SOLE DISPOSITIVE POWER
WITH
- --------------------- 0
10 SHARED DISPOSITIVE POWER
2,497,884
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,497,844 (may be deemed to beneficially own all shares beneficially
owned by each member of the group, or 7,705,517 shares)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.2% (may be deemed to beneficially own all shares beneficially
owned by each member of the group, 36.4%)
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 805844 10 7 13D Page 6 of 14
INTRODUCTION
------------
This Amendment ("Amendment No. 2") is being filed jointly, pursuant to
Rule 13d-1(f)(1) promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), by: (i) Mario Sbarro, individually and as
co-trustee of the Trust of Carmela Sbarro, (ii) Anthony Sbarro, (iii) Joseph
Sbarro and (iv) Franklin Montgomery, as co-trustee of the Trust of Carmela
Sbarro (individually, a "Reporting Person" and, collectively, the "Reporting
Persons") to amend the Schedule 13D (the "Original Schedule 13D") filed by the
Reporting Persons on January 22, 1998 as amended by Amendment No. 1 thereto
filed by the Reporting Persons on June 24, 1998. The Original Schedule 13D
reported, among other things, that the Reporting Persons had presented to the
Board of Directors of Sbarro, Inc. (the "Company") a proposal for the merger of
the Company with a company that would be owned by the Reporting Persons,
pursuant to which the public shareholders of the Company would receive cash for
all shares of Common Stock not owned by the Reporting Persons (the "Original
Proposal"). Amendment No. 1 was filed to report, among other things, that
negotiations regarding the Original Proposal had been terminated. The Original
Schedule 13D, as amended by Amendment No. 1, is referred to as the "Existing
Schedule 13D".
All terms used, but not defined, in Amendment No. 2 are as defined in
the Existing Schedule 13D.
Item 1 of the Existing Schedule 13D is amended in its entirety to read as
follows:
Item 1. Security and Issuer.
This statement relates to shares of the Common Stock, par value $.01
per share (the "Common Stock"), of Sbarro, Inc., a New York corporation (the
"Company"). The Company's principal executive office is at 401 Broadhollow Road,
Melville, New York 11747.
Item 2 of the Existing Schedule 13D is amended in its entirety to read as
follows:
Item 2. Identity and Background.
(a) This statement is being filed jointly pursuant to Rule
13d-1 (f)(1) promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), by: (i) Mario Sbarro individually and as co-trustee of the
Trust of Carmela Sbarro, (ii) Anthony Sbarro, (iii) Joseph Sbarro and (iv)
Franklin Montgomery, as co-trustee of the Trust of Carmela Sbarro (individually,
a "Reporting Person" and, collectively, the "Reporting Persons").
Information with respect to each Reporting Person is given solely by
such Reporting Person, no Reporting Person has responsibility for the accuracy
or completeness of the information supplied
<PAGE>
CUSIP No. 805844 10 7 13D Page 7 of 14
by any other Reporting Person, and each Reporting Person agrees that this
statement is filed on behalf of such Reporting Person only.
The Reporting Persons may be deemed to constitute a "group" for the
purposes of Rule 13d-3 of the Exchange Act.
(b) The business address of each of Mario Sbarro, Anthony
Sbarro and Joseph Sbarro is 401 Broadhollow Road, Melville, NY 11747. The
business address of Franklin Montgomery is 488 Madison Avenue, New York, New
York 10022.
(c) The principal occupation or employment of the Reporting
Persons is as follows: (i) Mario Sbarro is the Chairman of the Board of
Directors, Chief Executive Officer, President and a director of the Company;
(ii) Anthony Sbarro is the Vice Chairman of the Board of Directors, Treasurer
and a director of the Company; (iii) Joseph Sbarro is Senior Executive Vice
President, Secretary and a director of the Company; and (iv) Franklin Montgomery
is an attorney.
The Company is a leading operator and franchiser of family-style
Italian restaurants. The address of the Company is 401 Broadhollow Road,
Melville, NY 11747.
Franklin Montgomery is an attorney in sole practice. His business
address is 488 Madison Avenue, Suite 1100, New York, New York 10022.
(d) During the last five years, neither any Reporting Person
nor the Company has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) During the last five years, neither any Reporting Person
nor the Company has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which such person
or entity was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, Federal
or State securities laws or finding any violation with respect to such laws.
(f) Each of the Reporting Persons is a citizen of the United
States.
Item 3 of the Existing Schedule 13D is amended in its entirety to read as
follows:
Item 3. Source and Amount of Funds or Other Consideration.
Each of the Reporting Persons (in the case of Franklin Montgomery, as
one of two trustees of the Trust of Carmela Sbarro) has held the shares of
Common Stock beneficially owned (excluding unexercised stock options referred to
in Item 5 below) by such Reporting Person as reported herein for more than ten
years. No funds were involved in the formation of the group by the Reporting
Persons. It is anticipated that the source of funds for the transactions
proposed by the Reporting
<PAGE>
CUSIP No. 805844 10 7 13D Page 8 of 14
Persons, as described in Item 4, will be through the use of the Company's cash
and marketable securities together with a placement of debt securities. It is
also intended that the Company obtain a bank revolving credit facility to fund
the Company's ongoing working capital needs.
Item 4 of the Existing Schedule 13D is amended in its entirety to read as
follows:
Item 4. Purpose of Transaction.
On November 25, 1998, the Reporting Persons presented to the Company's
Board of Directors a new proposal (the "Proposal") for the merger of the Company
with a company (to be formed) which would be owned by the Reporting Persons,
pursuant to which the holders of all outstanding shares of Common Stock not
owned by the Reporting Persons (the "Public Shareholders") would receive $27.50
per share in cash for their shares of Common Stock. The Proposal is subject,
among other things, to (i) the entering into a definitive merger agreement with
respect to the transaction, (ii) approval of the transaction by a special
committee of the Board of Directors, the full Board of Directors and the
Company's shareholders, (iii) receipt of satisfactory financing for the
transaction, (iv) the continued suspension of dividends by the Company and (v)
receipt of a fairness opinion from the financial advisor to the special
committee of the Board stating that the proposed transaction is fair, from a
financial point of view, to the Public Shareholders. The Reporting Persons
advised the Company that they have been informed by Bear Stearns & Company, Inc.
("Bear Stearns") that, subject to certain conditions, Bear Stearns was highly
confident that financing for the transaction could be obtained. The proposed
transactions would, if and when consummated, result in the Company's Common
Stock ceasing to be authorized for listing on the New York Stock Exchange, Inc.
and becoming eligible for termination of registration under Section 12(g)(4) of
the Exchange Act.
Except therefor, no Reporting Person has any present plans or proposals
that relate to or would result in: (i) the acquisition of additional securities
of the Company's shares of Common Stock from the Company or the disposition of
securities of the Company; (ii) an extraordinary corporate transaction, such as
a merger, reorganization or liquidation of the Company; (iii) a sale or transfer
of a material amount of assets of the Company or any of its subsidiaries; (iv)
any change in the present board of directors or management of the Company,
including any plans or proposals to change the number or term of directors or to
fill any existing vacancies on the board; (v) any material change in the present
capitalization or dividend policy of the Company; (vi) any other material change
in the Company's business or corporate structure, (vii) any changes in the
Company's charter, by-laws or instruments corresponding thereto or other actions
which may impede the acquisition of control of the Company by any person; (viii)
causing a class of securities of the Company to be delisted from a national
securities exchange or cease to be authorized to be quoted in an inter-dealer
quotation system of a registered national securities association; (ix) causing a
class of equity securities of the Company to become eligible for termination of
registration pursuant to Section 12(g)(4) of the Securities Exchange Act of
1934; or (x) any action similar to any of those enumerated above.
<PAGE>
CUSIP No. 805844 10 7 13D Page 9 of 14
Item 5 of the Existing Schedule 13D is amended in its entirety to read as
follows:
Item 5. Interest in Securities of the Issuer.
(a) The Reporting Persons may be deemed a group within the
meaning of Rule 13d-5 under the Exchange Act and, therefore, each of the
Reporting Persons may be deemed to be the beneficial owner, within the meaning
of Rule 13d-3 under the Exchange Act, of all of the shares beneficially owned by
each member of the group, or an aggregate of 7,705,517 shares of Common Stock of
the Company, representing, based on the 20,528,309 shares of Common Stock which
were issued and outstanding on December 1, 1998 and the portion of options to
purchase shares of Common Stock held by the Reporting Persons which were then
exercisable or become exercisable within 60 days after such date, approximately
36.4% of the total of the outstanding shares of the Issuer's Common Stock and
such portion of such options.
Mario Sbarro may be deemed to be the beneficial owner of 4,332,137
(20.8%) of the issued and outstanding shares of Common Stock.
Anthony Sbarro is the beneficial owner of 1,398,800 (6.8%) of the
issued and outstanding shares of Common Stock.
Joseph Sbarro is the beneficial owner of 1,974,580 (9.5%) of the issued
and outstanding shares of Common Stock.
Franklin Montgomery, as co-trustee of the Trust of Carmela Sbarro, may
be deemed to be the beneficial owner of 2,497,884 (12.2%) of the issued and
outstanding shares of Common Stock.
(b) The following table sets forth information as to shares as
to which each Reporting Person individually has sole or shared power to vote or
to direct the disposition at December 1, 1998:
<PAGE>
CUSIP No. 805844 10 7 13D Page 10 of 14
<TABLE>
<CAPTION>
Shares with Shares with
Sole Power to Vote Shared Power to
and Vote and Total
Direct Disposition Direct Disposition Shares %
------------------- ------------------ ------ --
<S> <C> <C> <C> <C>
Mario Sbarro 1,828,063 (1) 2,504,074 (2) 4,332,137 (1) 20.8
Anthony Sbarro 1,398,800 (3) -- 1,398,800 (3) 6.8
Joseph Sbarro 1,974,580 (4) -- 1,974,580 (4) 9.5
Franklin Montgomery, as co-trustee -- 2,497,884 (5) 2,497,884 (5) 12.2
of the Trust of Carmela Sbarro
- --------------------
</TABLE>
(1) Includes 303,333 shares which are not outstanding but which are subject
to issuance upon exercise of the portion of options held by Mario
Sbarro that are presently exercisable or exercisable within 60 days of
December 1, 1998.
(2) Includes (i) 5,450 shares of Common Stock held by a charitable
foundation supported by Mario Sbarro and his wife, of which Mario
Sbarro, his wife and another director of the Company are directors,
(ii) 2,497,884 shares of Common Stock held by the Trust of Carmela
Sbarro, of which Mario Sbarro is one of two trustees and (iii) 740
shares of Common Stock owned by the spouse of Mario Sbarro. The
reporting of these shares should not be construed as an admission that
Mario Sbarro is, for purposes of Section 13 of the Exchange Act or
otherwise, the beneficial owner of these shares.
(3) Includes 165,000 shares of Common Stock which are not outstanding but
are subject to issuance upon exercise of the portion of options held by
Anthony Sbarro that are presently exercisable or exercisable within 60
days of December 1, 1998.
(4) Includes (i) 166,666 shares of Common Stock which are not outstanding
but which are subject to issuance upon exercise of the portion of
options held by Joseph Sbarro that are presently exercisable or
exercisable within 60 days of December 1, 1998 and (ii) 609,000 shares
of Common Stock owned by a family partnership of which Joseph Sbarro is
the sole general partner. The reporting of such 609,000 shares should
not be construed as an admission that Joseph Sbarro is, for purposes of
Section 13 of the Exchange Act or otherwise, the beneficial owner of
these shares.
(5) Represents shares of Common Stock owned by the Trust of Carmela Sbarro,
of which Mr. Montgomery is one of the two trustees.
<PAGE>
CUSIP No. 805844 10 7 13D Page 11 of 14
(c) No Reporting Person has engaged in any transaction in the
Company's Common Stock since sixty (60) days prior to the date of the Original
Schedule 13D, except that (i) on December 1, 1998, Mario Sbarro made gifts
aggregating 7,400 shares to his children and their spouses and (ii) certain
stock options held by Mario, Anthony and Joseph Sbarro under the Company's stock
option plans have, as described in Item 6, vested in accordance with their
terms.
(d) No person other than the Reporting Persons is known to
have the right to receive or the power to direct the receipt of dividends from,
or the proceeds from the sale of, securities of the Company beneficially owned
by the Reporting Persons.
Item 7 of the Existing Schedule 13D is amended in its entirety to read as
follows:
Item 7. Material to be Filed as Exhibits.
Exhibit Description
------- -----------
1 Joint Filing Agreement dated as of December 2, 1998 among
Mario Sbarro, Anthony Sbarro, Joseph Sbarro and Franklin
Montgomery.
2 Proposal dated November 24, 1998 on behalf of the Reporting
Persons to the Board of Directors of the Company.
<PAGE>
CUSIP No. 805844 10 7 13D Page 12 of 14
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: December 2, 1998
/s/ Mario Sbarro
-------------------------------------------
Mario Sbarro
/s/ Joseph Sbarro
-------------------------------------------
Joseph Sbarro
/s/ Anthony Sbarro
-------------------------------------------
Anthony Sbarro
/s/ Franklin Montgomery
-------------------------------------------
Franklin Montgomery
as co-trustee of the Trust of Carmela Sbarro
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
1 Joint Filing Agreement dated as of December 2, 1998 among
Mario Sbarro, Anthony Sbarro, Joseph Sbarro and Franklin
Montgomery.
2 Proposal dated November 24, 1998 on behalf of the Reporting
Persons to the Board of Directors of the Company.
EXHIBIT 1
---------
The undersigned agree that the statement on Schedule 13D to which this
Agreement is attached is filed on behalf of each of them.
Dated: December 2, 1998
/s/ Mario Sbarro
-------------------------------------------
Mario Sbarro
/s/ Joseph Sbarro
-------------------------------------------
Joseph Sbarro
/s/ Anthony Sbarro
-------------------------------------------
Anthony Sbarro
/s/ Franklin Montgomery
-------------------------------------------
Franklin Montgomery
as co-trustee of the Trust of Carmela Sbarro
EXHIBIT 2
---------
THE SBARRO FAMILY
(Mario Sbarro, Joseph Sbarro, Anthony Sbarro
and the Trust of Carmela Sbarro)
c/o Sbarro, Inc.
401 Broad Hollow Road
Melville, NY 11747
November 25, 1998
Board of Directors of Sbarro, Inc.
Gentlemen:
I am pleased to extend a new proposal, on behalf of myself, Joseph
Sbarro, Anthony Sbarro and the Trust of Carmela Sbarro (the "Sbarro Family"), to
acquire all of the outstanding shares of Common Stock of Sbarro, Inc. (the
"Company") not currently owned by the Sbarro Family (the "Public Shares"). The
transaction would be structured as a cash merger of the Company with a company
to be owned by the Sbarro Family in which each holder of Public Shares would
receive $27.50 per share, or an aggregate of approximately $388 million, based
on the number of Public Shares outstanding as of October 4, 1998.
Consummation of the acquisition would be subject, among other things,
to (i) entering into a definitive merger agreement with the Company with respect
to the transaction, (ii) approval of the transaction by a special committee of
the Company's Board of Directors (the "Special Committee"), the full Board of
Directors and the Company's shareholders, (iii) receipt of satisfactory
financing for the transaction (the Sbarro family members have been informed by
Bear, Stearns & Co. Inc., that, subject to certain conditions, Bear Stearns was
highly confident that financing for the transaction could be obtained), (iv) the
continued suspension of dividends by the Company and (v) receipt of a fairness
opinion from the financial advisor to the Special Committee stating that the
proposed transaction is fair, from a financial point of view, to the public
shareholders.
We believe that our proposal is beneficial to both the Company and its
public shareholders and is a fair one to the public shareholders. The proposed
acquisition price of $27.50 represents a premium over today's closing price of
the Company's Common Stock on the New York Stock Exchange of $24.8125.
We look forward to working with you and the advisors to the Special
Committee to complete this transaction and hope you will give this proposal your
prompt attention. We reserve the right to amend or withdraw this proposal at any
time in our discretion.
Sincerely,
By: Mario Sbarro, on behalf of
the Sbarro Family
