SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 6
(Final Amendment)
TO
SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT
(PURSUANT TO SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934)
Sbarro, Inc.
(Name of Issuer)
Sbarro, Inc.
Sbarro Merger LLC
Mario Sbarro
Joseph Sbarro
Anthony Sbarro
Joseph Sbarro (1994) Family Limited Partnership
Mario Sbarro and Franklin Montgomery, not individually
but as trustees under that certain Trust Agreement
dated April 28, 1984 for the benefit of Carmela Sbarro
and her descendants
(Name of Person(s) Filing Statement)
Common Stock, par value $.01 per share
(Title of Class of Securities)
805844-10-7
(Cusip Numbers of Class of Securities)
----------------
Mario Sbarro, Chairman and President
Sbarro, Inc.
401 Broadhollow Road
Melville, New York 11747
Telephone Number: (516) 715-4100
Copies To:
<TABLE>
Richard A. Rubin, Esq. Steven J. Gartner, Esq. Arthur A. Katz, Esq.
Parker Chapin Flattau & Klimpl, LLP Willkie Farr & Gallagher Warshaw Burstein Cohen
1211 Avenue of the Americas 787 Seventh Avenue Schlesinger & Kuh, LLP
New York, New York 10036 New York, New York 10019 555 Fifth Avenue
(212) 704-6000 (212) 728-8000 New York, New York 10017
(212) 984-7700
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(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf Of Person(s) Filing Statement)
This statement is filed in connection with (check the appropriate box):
a. [X] The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C, or Rule 13e-3(c) under the Securities
Exchange Act of 1934.
b. [ ] The filing of a registration statement under the Securities Act
of 1933.
c. [ ] A tender offer.
d. [ ] None of the above.
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies. [X]
Calculation of Filing Fee
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Transaction Amount of Filing Fee*
Valuation* $79,129.93
$395,649,643
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[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.
The entire filing fee was paid in connection with the original filing of
the Schedule 13E-3 which was filed on February 26, 1999.
The entire filing fee was paid in connection with the original filing of
the Schedule 13E-3 which was filed on February 26, 1999.
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* Determined by multiplying 13,467,649 (the number of outstanding shares of
Common Stock of Sbarro, Inc. not owned by the persons filing this Schedule
13E-3) by $28.85 per share and adding the aggregate amount anticipated to
be paid to persons holding options to purchase shares of Common Stock
issued by the Company in consideration of cancellation of such options.
** Determined pursuant to Rule 0-11(b)(1) by multiplying $395,649,643 by 1/50
of 1%.
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<PAGE>
INTRODUCTION
This Amendment No. 6 is the Final Amendment ("Final Amendment") to the
Rule 13e-3 Transaction Statement on Schedule 13E-3 (the "Original Schedule
13E-3" and, as amended through this Final Amendment, this "Schedule 13E-3")
filed by Sbarro, Inc., a New York corporation (the "Company"), Sbarro Merger
LLC, a New York limited liability company ("Mergeco"), and Mario Sbarro, Joseph
Sbarro, Anthony Sbarro, the Joseph Sbarro (1994) Family Limited Partnership and
Mario Sbarro and Franklin Montgomery, not individually but as trustees under
that certain Trust Agreement dated April 28, 1984 (the "Trust of Carmela
Sbarro") for the benefit of Carmela Sbarro and her descendants (collectively,
the "Continuing Shareholders") pursuant to Section 13(e) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Rule 13e-3 thereunder,
in connection with the merger (the "Merger") of Mergeco with and into the
Company, with the Company as the surviving corporation in the Merger (the
"Surviving Corporation").
This Final Amendment is filed pursuant to Rule 13e-3(d)(3) under the
Exchange Act to report the consummation on September 28, 1999 of the Merger. The
Merger was effected pursuant to an Amended and Restated Agreement and Plan of
Merger dated as of January 19, 1999 among the Company, Mergeco and the
Continuing Shareholders (the "Restated Merger Agreement"). Mergeco was formed by
the Continuing Shareholders in connection with the Merger and was owned solely
by the Continuing Shareholders. Pursuant to the terms and conditions set forth
in the Restated Merger Agreement, each outstanding share of the Company's Common
Stock on September 28, 1999, other than shares of Common Stock then owned of
record by the Continuing Shareholders or Mergeco, has been converted into the
right to receive $28.85 per share in cash, without interest. As a result of the
Merger, the Continuing Shareholders own 100% of the capital stock of the
Surviving Corporation.
There follows a cross reference sheet supplied pursuant to Instruction F
to Schedule 13E-3 to show the location in the definitive Proxy Statement filed
as Exhibit (d)(i) to Amendment No. 5 to the Schedule 13e-3 of the information
required to be included in response to the items of Schedule 13E- 3. The
information in the definitive Proxy Statement is hereby expressly incorporated
herein by reference, and capitalized terms used but not defined herein shall
have the meanings ascribed thereto in the definitive Proxy Statement.
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<TABLE>
<CAPTION>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION IN PROXY STATEMENT
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Item 1. Issuer and Class of Security
Subject to the Transaction.
(a) .............................. Front Cover Page;
"SUMMARY - Certain Definitions";
"SUMMARY - The Merger Parties; The Company";
"MANAGEMENT - Directors and Executive Officers
of the Company".
(b) .............................. Front Cover Page;
"SUMMARY - Certain Definitions";
"SUMMARY - Information Concerning the Meeting;
Record Date for the Meeting; Quorum Requirements";
"SUMMARY - Market Prices of and Dividends on the
Common Stock".
(c) .............................. "SUMMARY - Market Prices of and Dividends on the
Common Stock".
(d) .............................. "SUMMARY - Market Prices of and Dividends on the
Common Stock";
"SPECIAL FACTORS - Financing
of the Merger"; "SPECIAL
FACTORS - Plans for the
Company after the Merger".
(e) .............................. Not Applicable.
(f) .............................. "CERTAIN TRANSACTIONS IN THE COMMON
STOCK".
Item 2. Identity and Background.
(a)-(d) .......................... "SUMMARY - Certain Definitions";
"SUMMARY - The Merger Parties";
"BUSINESS OF THE COMPANY";
"MANAGEMENT";
"SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT".
(e) and (f) ...................... Not Applicable.
(g) ..............................
"SUMMARY - The Merger Parties";
"MANAGEMENT".
</TABLE>
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<TABLE>
<CAPTION>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION IN PROXY STATEMENT
- ----------------------- ---------------------------
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Item 3. Past Contacts, Trans
actions or Negotiations.
(a) (1) .......................... Not Applicable.
(a) (2) and (b) .................. "SPECIAL FACTORS - Background of the
Transaction";
"MANAGEMENT - Directors and Executive Officers
of the Company";
"CERTAIN TRANSACTIONS IN THE COMMON
STOCK".
Item 4. Terms of the Transaction.
(a) .............................. "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER";
"SUMMARY - Information Concerning the Meeting;
Purpose of the Meeting";
"SUMMARY - Special Factors; Certain Effects of the
Merger";
"SUMMARY - Special Factors; Litigation Pertaining to
the Merger";
"SUMMARY - Special Factors; Financing of the Merger";
"SUMMARY - The Restated Merger Agreement";
"SPECIAL FACTORS - Interests of
Certain Persons in the Merger
and the Company";
"SPECIAL FACTORS - Certain Effects of
the Merger";
"SPECIAL FACTORS - Financing of the Merger";
"SPECIAL FACTORS - Regulatory Approvals";
"LITIGATION PERTAINING TO THE MERGER";
"THE RESTATED MERGER AGREEMENT".
</TABLE>
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<TABLE>
<CAPTION>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION IN PROXY STATEMENT
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(b) .............................. "SUMMARY - Information Concerning the Meeting;
Purpose of the Meeting";
"SUMMARY - Information Concerning the Meeting;
Voting Requirements";
"SUMMARY - Special Factors; Certain Effects of the
Merger";
"SUMMARY - Special Factors; Litigation Pertaining to the
Merger";
"SUMMARY - The Restated Merger Agreement;
The Merger Consideration";
"SPECIAL FACTORS - Interests of Certain Persons in the
Merger and the Company";
"SPECIAL FACTORS - Certain Effects of the Merger";
"LITIGATION PERTAINING TO THE MERGER Current Shareholder
Litigation";
"THE RESTATED MERGER AGREEMENT - The
Merger; Merger Consideration";
"THE RESTATED MERGER AGREEMENT Treatment of
Options".
Item 5. Plans or Proposals of the
Issuer or Affiliate.
(a) and (b) ...................... "SUMMARY - Special Factors; Plans for the Company
after the Merger";
"SPECIAL FACTORS - Plans for the Company after
the Merger".
(c) .............................. "SPECIAL FACTORS - Interests of Certain Persons in
the Merger and the Company; Directors and Officers of
the Surviving Corporation";
"THE RESTATED MERGER AGREEMENT -
Directors and Officers, Certificate of Incorporation and
By-Laws Following the Merger".
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION IN PROXY STATEMENT
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<S> <C>
(d)-(e) .......................... "SUMMARY - Special Factors; Plans for the Company
after the Merger";
"SUMMARY - Special Factors; Financing of the
Merger";
"SUMMARY - Market Prices of
and Dividends on the Common
Stock";
"SPECIAL FACTORS - Plans for the Company after
the Merger";
"SPECIAL FACTORS - Financing of the Merger".
(f)-(g) .......................... "SUMMARY - Special Factors; Certain Effects of the
Merger";
"SPECIAL FACTORS - Certain Effects of the Merger".
Item 6. Source and Amount of
Funds or Other
Consideration.
(a) .............................. "SUMMARY - Special Factors; Financing of the
Merger";
"SPECIAL FACTORS - Financing of the Merger".
(b) .............................. "SPECIAL FACTORS - Interests of Certain Persons in
the Merger and the Company; Compensation of Special
Committee Members";
"SPECIAL FACTORS - Fees and Expenses";
"SPECIAL FACTORS - Financing of the Merger; Terms of Bear
Stearns' Engagement";
"LITIGATION PERTAINING TO THE MERGER Current Shareholder
Litigation";
"THE RESTATED MERGER AGREEMENT - Fees and
Expenses".
(c) .............................. "SUMMARY - Special Factors; Financing of the
Merger";
"SPECIAL FACTORS - Certain Financial Projections";
"SPECIAL FACTORS - Plans for the Company after
the Merger";
"SPECIAL FACTORS - Financing of the Merger".
</TABLE>
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<TABLE>
<CAPTION>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION IN PROXY STATEMENT
- ----------------------- ---------------------------
<S> <C>
(d) .............................. "SUMMARY - Special Factors; Financing of the
Merger";
"SPECIAL FACTORS - Financing of the Merger".
Item 7. Purpose(s), Alternatives,
Reasons and Effects.
(a) and (c) ...................... "SUMMARY - Special Factors; Continuing Share
holders' Purpose and Reasons for the Merger";
"SPECIAL FACTORS - Background of the
Transaction";
"SPECIAL FACTORS - The Continuing Shareholders'
Purpose and Reasons for the Merger".
(b) .............................. "SPECIAL FACTORS - Background of the
Transaction";
"SPECIAL FACTORS - The Continuing Shareholders
Purpose and Reasons for the Merger".
(d) .............................. "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER";
"SUMMARY - Information Concerning the Meeting;
Purpose of the Meeting";
"SUMMARY - Special Factors; Plans for the Company
after the Merger";
"SUMMARY - Special Factors; Interests of Certain
Persons in the Merger and the Company";
"SUMMARY - Special Factors; Certain Effects of the
Merger";
"SUMMARY - Special Factors; Certain U.S. Federal
Income Tax Consequences";
"SUMMARY - Special Factors; Accounting
Treatment";
"SUMMARY - Special Factors;
Financing of the Merger";
"SUMMARY - The Restated Merger Agreement; The Merger
Consideration";
"SPECIAL FACTORS - The Continuing
Shareholders Purpose and Reasons for the Merger";
"SPECIAL FACTORS - Certain Financial Projections";
"SPECIAL FACTORS - Plans for the Company after the
Merger";
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION INPROXY STATEMENT
- ----------------------- --------------------------
<S> <C>
"SPECIAL FACTORS - Interests of Certain Persons in
the Merger and the Company";
"SPECIAL FACTORS - Certain Effects of the Merger";
"SPECIAL FACTORS - Certain U.S. Federal Income
Tax Consequences";
"SPECIAL FACTORS - Fees and Expenses";
"SPECIAL FACTORS - Accounting Treatment";
"SPECIAL FACTORS - Risk of Insolvency";
"THE RESTATED MERGER AGREEMENT - The
Merger; Merger Consideration";
"THE RESTATED MERGER AGREEMENT - The
Exchange Fund; Payment for Shares of Common
Stock";
"THE RESTATED MERGER AGREEMENT -
Treatment of Options";
"THE RESTATED MERGER AGREEMENT - Tax
Withholding".
Item 8. Fairness of the
Transaction.
(a) ..............................
Front Cover Page;
"CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER";
"SUMMARY - Special Factors; Recommendation of the Special
Committee and the Board of Directors";
"SUMMARY - pecial Factors; Presentation
and Fairness Opinion of Prudential Securities";
"SPECIAL FACTORS - Background f the Transaction";
"SPECIAL FACTORS - Recommendations of
the Special Committee and the board of Directors";
"SPECIAL FACTORS - The Continuing
Shareholders' Purpose and Reasons for the Merger";
"SPECIAL FACTORS - Presentation and Fairness
Opinion of Prudential
Securities".
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION INPROXY STATEMENT
- ----------------------- ---------------------------
<S> <C>
(b) .............................. "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER";
"SUMMARY - Special Factors; Recommendation of the Special
Committee and the Board of directors";
"SUMMARY -
Special Factors; Factors Considered by the Special
Committee and the Board of Directors";
"SUMMARY - Special Factors; Presentation
and Fairness Opinion of Prudential Securities";
"SPECIAL FACTORS - Background of the Transaction";
"SPECIAL FACTORS - Recommendation of
the Special Committee and the Board of Directors";
"SPECIAL FACTORS - The Continuing
Shareholders' Purpose and Reasons for the Merger";
"SPECIAL FACTORS - Presentation and Fairness
Opinion of Prudential Securities";
"SPECIAL FACTORS - Certain Financial Projections";
"LITIGATION PERTAINING TO THE MERGER
Current Shareholder Litigation";
"THE RESTATED MERGER AGREEMENT - No
Solicitation; Fiduciary Obligation of Directors";
"THE RESTATED MERGER AGREEMENT Conditions"; "THE
RESTATED MERGER AGREEMENT Termination";
"THE RESTATED MERGER AGREEMENT Amendment
and Waiver".
</TABLE>
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<TABLE>
<CAPTION>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION INPROXY STATEMENT
- ----------------------- ---------------------------
<S> <C>
(c) .............................. "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER";
"SUMMARY - Information Concerning the Meeting;
Voting Requirements";
"SUMMARY - The Restated Merger Agreement; Conditions
to, and Termination of, the Merger";
"SPECIAL FACTORS - Recommendations of the
Special Committee and the Board of Directors";
"THE RESTATED MERGER AGREEMENT - The Merger; Merger
Consideration;
"THE RESTATED MERGER AGREEMENT Covenants";
"THE RESTATED MERGER AGREEMENT Conditions";
"THE RESTATED MERGER AGREEMENT
Termination".
(d) .............................. "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER";
"SUMMARY - Special Factors; Fairness Opinion of
Prudential Securities";
"SPECIAL FACTORS - Background of the
Transaction";
"SPECIAL FACTORS - Recommendation of the
Special Committee and the Board of Directors";
"SPECIAL FACTORS - The Continuing Shareholders'
Purpose and Reasons for the Merger";
"SPECIAL FACTORS - Presentation and Fairness
Opinion of Prudential Securities".
(e) .............................. "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER";
"SPECIAL FACTORS - Background of the
Transaction";
"SPECIAL FACTORS - Recommendation of the
Special Committee and the Board of Directors";
"SPECIAL FACTORS - The Continuing Shareholders'
Purpose and Reasons for the Merger".
(f) .............................. "SPECIAL FACTORS - Background of the
Transaction".
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION INPROXY STATEMENT
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<S> <C>
Item 9. Reports, Opinions,
Appraisals and Certain
Negotiations.
(a) and (b)....................... "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER";
"SUMMARY - Special Factors; Factors Considered by
the Special Committee and the Board of Directors";
"SUMMARY - Special Factors; Fairness Opinion of
Prudential Securities";
"SPECIAL FACTORS - Background of the
Transaction";
"SPECIAL FACTORS - Recommendation of the Special
Committee and the Board of Directors";
"SPECIAL FACTORS - The Continuing Shareholders' Purpose and
Reasons for the Merger";
"SPECIAL FACTORS - Presentation and Fairness
Opinion of Prudential
Securities".
(c) .............................. "AVAILABLE INFORMATION".
Item 10. Interest in Securities of the
Issuer.
(a) .............................. "SUMMARY - Information Concerning the Meeting;
Voting Requirements";
"SPECIAL FACTORS - Interests of Certain Persons in the
Merger and the Company";
"SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT"
(b) .............................. "CERTAIN TRANSACTIONS IN THE COMMON
STOCK".
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION INPROXY STATEMENT
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<S> <C>
Item 11. Contracts, Arrangements
or Understandings With
Respect to the Issuer's
Securities........................ "SUMMARY - Information Concerning the Meeting;
Voting Requirements";
"SUMMARY - The Restated Merger Agreement";
"SPECIAL FACTORS - Interests of Certain Persons in
the Merger and the Company";
"SPECIAL FACTORS - Fees and Expenses";
"SPECIAL FACTORS - Financing of the Merger";
"THE RESTATED MERGER AGREEMENT".
Item 12. Present Intention and
Recommendation of
Certain Persons with
Regard to the Transaction.
(a) .............................. "SUMMARY - Information Concerning the Meeting;
Voting Requirements";
"SPECIAL FACTORS - Recommendation of the Special
Committee and the Board of Directors";
"THE RESTATED MERGER AGREEMENT Covenants";
"CERTAIN TRANSACTIONS IN THE COMMON STOCK".
(b) .............................. "SUMMARY - Special Factors; Recommendation of
the Special Committee and the Board of Directors";
"SPECIAL FACTORS - Background of the
Transaction";
"SPECIAL FACTORS - Recommendation of the
Special Committee and the Board of Directors".
Item 13. Other Provisions of the
Transaction.
(a) .............................. "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER";
"SUMMARY - No Right of Appraisal";
"LITIGATION PERTAINING TO THE MERGER
Current Shareholder Litigation".
</TABLE>
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<TABLE>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION INPROXY STATEMENT
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<S> <C>
(b)-(c)........................... Not Applicable.
Item 14. Financial Information.
(a) .............................. "WHERE YOU CAN FIND MORE INFORMATION";
"CONSOLIDATED FINANCIAL STATEMENTS".
(b) .............................. Not Applicable.
Item 15. Persons and Assets
Employed, Retained or
Utilized.
(a) .............................. Front Cover Page;
"SUMMARY - Special Factors; Plans for the Company
after the Merger";
"SUMMARY - Special Factors; Financing of the Merger";
"SPECIAL FACTORS - Plans for the Company after the
Merger";
"SPECIAL FACTORS - Interests of Certain Persons
in the Merger and the Company";
"SPECIAL FACTORS - Fees and Expenses";
"SPECIAL FACTORS - Financing of the
Merger";
"THE RESTATED MERGER AGREEMENT Indemnification and
Insurance";
"THE RESTATED MERGER AGREEMENT - Fees and
Expenses".
(b) .............................. Front Cover Page;
"CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER";
"SPECIAL FACTORS - Interests of Certain Persons in
the Merger and the Company; Compensation of the
Special Committee Members".
Item 16. Additional Information. "SUMMARY - Information Concerning the Meeting";
Proxy Statement, together with the proxy card.
</TABLE>
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<TABLE>
<CAPTION>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION INPROXY STATEMENT
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Item 17. Material to be Filed as
Exhibits.
(a) (1) ........................ Debt Financing Letter, dated as of January 19, 1999.*
(b) (1) ........................ Presentation by Prudential Securities Incorporated to the
Special Committee, dated January 19, 1999.*
(b) (2) ........................ Opinion of Prudential Securities Incorporated, dated
January 19, 1999 (set forth as Annex II to the Proxy
Statement).*
(b) (3) ........................ Presentation by Bear, Stearns & Co. Inc. to certain
Continuing Shareholders, dated October 10, 1996 (in
accordance with Rule 202 of Regulation S-T, Section II
of the presentation is filed in paper pursuant to a
continuing hardship exemption).*
(b) (4) ........................ Presentation by Bear, Stearns & Co. Inc. to the
Company's Board of Directors, dated January 15,
1997.*
(b) (5) ........................ Presentation by Bear, Stearns & Co. Inc. to the
Company's Board of Directors, dated January 23, 1997
(in accordance with Rule 202 of Regulation S-T, the
financial models of this presentation are filed in paper
pursuant to a continuing hardship exemption).*
(b) (6) ........................ Presentation by Bear, Stearns & Co. Inc. to the
Company's Board of Directors, dated July 20, 1998.*
(b) (7) ........................ List of potential purchasers of the Company prepared in
August 1998.*
(b) (8) ........................ August 1998 confidential information memorandum sent
to potential purchasers of the Company.*
(b) (9) ........................ Presentation by Prudential Securities Incorporated to the
Special Committee, dated March 3, 1998.*
</TABLE>
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<TABLE>
<CAPTION>
SCHEDULE 13E-3
ITEM NUMBER AND CAPTION LOCATION INPROXY STATEMENT
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<S> <C>
(c) (1) ........................ Amended and Restated Agreement and Plan of Merger between
Sbarro, Inc., Sbarro Merger LLC, Mario Sbarro, Joseph
Sbarro, Anthony Sbarro, the Joseph Sbarro (1994) Family
Limited Partnership and Mario Sbarro and Franklin Montgomery, not
individually but as trustees under that certain Trust
Agreement dated April 28, 1984 for the benefit of
Carmela Sbarro, dated as of January 19, 1999 (as amended
June 17, 1999) (set forth as Annex I to the Proxy
Statement).*
(d) (1) ........................ Definitive Proxy Statement (including Annexes I and II),
together with the proxy card.*
(e) ............................ Not applicable.
(f) ............................ As of the date of this Schedule 13E-3, no written
instruction, form or other material has been furnished to
any person making the actual oral solicitation or other
recommendation for such person's use, directly or
indirectly, in connection with this Rule 13e-3
transaction.
(g) (1) ........................ Memorandum of Understanding, dated January 19,
1999.*
(g) (2) ........................ Stipulation of Settlement dated April 7, 1999 among
counsel to the plaintiffs and counsel to the defendants in
the Current Shareholder Litigation (as defined in the
Proxy Statement filed as Exhibit (d)(1).*
(g) (3) ........................ Order and Final Judgment, dated July 14, 1999.*
(g) (4) ........................ Indenture dated as of September 28, 1999 among the
Company, the Restricted Subsidiaries of the Company
named therein, as guarantors, and Firstar Bank, as trustee.
(g) (5) ........................ Credit Agreement dated as of September 23, 1999 by
and among the Company and European American Bank,
as Agent, and the Lenders Party thereto (initially
European American Bank).
</TABLE>
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* Filed with Amendment No. 5 to the Schedule 13e-3.
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<PAGE>
ITEM 1. ISSUER AND CLASS OF SECURITY SUBJECT TO THE TRANSACTION.
(a) The information set forth on the Front Cover Page and in "SUMMARY -
Certain Definitions"; "SUMMARY - The Merger Parties; The Company"; and
"MANAGEMENT Directors and Executive Officers of the Company" of the Proxy
Statement is incorporated herein by reference.
(b) The information set forth on the Front Cover Page and in "SUMMARY -
Certain Definitions"; "SUMMARY - Information Concerning the Meeting; Record Date
for the Meeting; Quorum Requirements"; and "SUMMARY - Market Prices of and
Dividends on the Common Stock" of the Proxy Statement is incorporated herein by
reference.
(c) The information set forth in "SUMMARY - Market Prices of and
Dividends on the Common Stock" of the Proxy Statement is incorporated herein by
reference.
(d) The information set forth in "SUMMARY - Market Prices of and
Dividends on the Common Stock"; "SPECIAL FACTORS - Financing of the Merger"; and
"SPECIAL FACTORS Plans for the Company after the Merger" of the Proxy Statement
is incorporated herein by reference.
(e) Not applicable.
(f) The information set forth in "CERTAIN TRANSACTIONS IN THE COMMON
STOCK" of the Proxy Statement is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
This Statement is being filed jointly by the Company (which is the
issuer of the class of equity securities that is the subject of the Rule 13e-3
transaction), Mergeco and the Continuing Shareholders.
(a) - (d) The information set forth in "SUMMARY - Certain Definitions";
"SUMMARY The Merger Parties"; "BUSINESS OF THE COMPANY"; "MANAGEMENT"; and
"SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT" of the Proxy
Statement is incorporated herein by reference.
(e) During the last five years, neither the Company, nor, to the best
of its knowledge, any of its directors, executive officers or controlling
persons has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors). During the last five years, neither
Mergeco, nor any of its members has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors). During the last five
years, none of the individual Continuing Shareholders has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors).
During the last five years, the sole general partner of the Joseph Sbarro (1994)
Family Limited Partnership has not been convicted in a criminal proceeding
(excluding traffic violations or similar
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misdemeanors). During the last five years, neither of the trustees of the Trust
of Carmela Sbarro has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(f) During the last five years, neither the Company, nor, to the best
of its knowledge, any of its directors, executive officers or controlling
persons, 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. During the last five years, neither Mergeco, nor any
of its members 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 violations of such laws. During the last five years, none of the individual
Continuing Shareholders 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 violations of such laws. During the last five
years, the sole general partner of the Joseph Sbarro (1994) Family Limited
Partnership was not 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 violations of such laws. During the last five
years, neither of the trustees of the Trust of Carmela Sbarro 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 violations of such laws.
(g) The information set forth in "SUMMARY - The Merger Parties"; and
"MANAGEMENT" of the Proxy Statement is incorporated herein by reference.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS.
(a) (1) Not applicable.
(a) (2) and (b) The information set forth in "SPECIAL FACTORS -
Background of the Transaction"; "MANAGEMENT - Directors and Executive Officers
of the Company"; and "CERTAIN TRANSACTIONS IN THE COMMON STOCK" of the Proxy
Statement is incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION.
(a) The information set forth in "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER"; "SUMMARY - Information Concerning the Meeting; Purpose
of the Meeting"; "SUMMARY - Special Factors; Certain Effects of the Merger";
"SUMMARY Special Factors; Litigation Pertaining to the Merger"; "SUMMARY -
Special Factors; Financing of
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the Merger"; "SUMMARY - The Restated Merger Agreement"; "SPECIAL FACTORS -
Interests of Certain Persons in the Merger and the Company"; "SPECIAL FACTORS -
Certain Effects of the Merger"; "SPECIAL FACTORS - Financing of the Merger";
"SPECIAL FACTORS - Regulatory Approvals"; "LITIGATION PERTAINING TO THE MERGER";
and "THE RESTATED MERGER AGREEMENT" of the Proxy Statement is incorporated
herein by reference.
(b) The information set forth in "SUMMARY - Information Concerning the
Meeting; Purpose of the Meeting"; "SUMMARY - Information Concerning the Meeting;
Voting Require ments"; "SUMMARY - Special Factors; Certain Effects of the
Merger"; "SUMMARY - Special Factors; Litigation Pertaining to the Merger";
"SUMMARY - The Restated Merger Agreement; The Merger Consideration"; "SPECIAL
FACTORS - Interests of Certain Persons in the Merger and the Company"; "SPECIAL
FACTORS - Certain Effects of the Merger"; "LITIGATION PERTAINING TO THE MERGER -
Current Shareholder Litigation"; "THE RESTATED MERGER AGREEMENT - The Merger;
Merger Consideration"; and "THE RESTATED MERGER AGREEMENT - Treatment of
Options" of the Proxy Statement is incorporated herein by reference.
ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE.
(a) and (b) The information set forth in "SUMMARY - Special Factors;
Plans for the Company after the Merger"; and "SPECIAL FACTORS - Plans for the
Company after the Merger" of the Proxy Statement is incorporated herein by
reference.
(c) The information set forth in "SPECIAL FACTORS - Interests of
Certain Persons in the Merger and the Company; Directors and Officers of the
Surviving Corporation"; and "THE RESTATED MERGER AGREEMENT - Directors and
Officers, Certificate of Incorporation and By-Laws Following the Merger" of the
Proxy Statement is incorporated herein by reference.
(d) - (e) The information set forth in "SUMMARY - Special Factors;
Plans for the Company after the Merger"; "SUMMARY - Special Factors; Financing
of the Merger"; "SUMMARY - Market Prices of and Dividends on the Common Stock";
"SPECIAL FACTORS - Plans for the Company after the Merger"; and "SPECIAL FACTORS
- - Financing of the Merger" of the Proxy Statement is incorporated herein by
reference.
The Merger was funded through the placement of $255.0 million of 11.0%
Senior Notes due 2009, sold at 98.514% of par to yield 11.25% per annum, and
substantially all of the Company's cash on hand. The Company also entered into a
new $30.0 million senior revolving credit facility with European American Bank.
See Item 6(c) below.
(f) - (g) The information set forth in "SUMMARY - Special Factors;
Certain Effects of the Merger"; and "SPECIAL FACTORS - Certain Effects of the
Merger" of the Proxy Statement is incorporated herein by reference.
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<PAGE>
On October 8, 1999, the Company filed a Certification and Notice of
Termination of Registration on Form 15 pursuant to Rule 12g-4(a)(1)(i)
promulgated under the Exchange Act terminating the registration of its Common
Stock under Section 12 of the Exchange Act and Rule 12h-3(b)(1)(i) promulgated
under the Exchange Act suspending the Company's obligation, pursuant to Section
15(d) of the Exchange Act, to file reports pursuant to Section 13(a) of the
Exchange Act. The Company has been notified by the New York Stock Exchange (the
"Exchange") that the Exchange is filing an application with the Securities and
Exchange Commission to strike the Company's Common Stock from listing on the
Exchange on October 18, 1999.
ITEM 6. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in "SUMMARY - Special Factors; Financing
of the Merger"; and "SPECIAL FACTORS - Financing of the Merger" of the Proxy
Statement is incorporated herein by reference.
(b) The information set forth in "SPECIAL FACTORS - Interests of
Certain Persons in the Merger and the Company; Compensation of Special Committee
Members"; "SPECIAL FACTORS Fees and Expenses"; "SPECIAL FACTORS - Financing of
the Merger; Terms of Bear Stearns' Engagement"; "LITIGATION PERTAINING TO THE
MERGER - Current Shareholder Litigation"; and "THE RESTATED MERGER AGREEMENT -
Fees and Expenses" of the Proxy Statement is incorporated herein by reference.
(c) The information set forth in "SUMMARY - Special Factors; Financing
of the Merger"; "SPECIAL FACTORS - Certain Financial Projections"; "SPECIAL
FACTORS - Plans for the Company after the Merger"; and "SPECIAL FACTORS -
Financing of the Merger" of the Proxy Statement is incorporated herein by
reference.
The consideration for shares of the Public Shareholders and for the
stock options pursuant to the Merger Agreement was funded through the placement
of $255.0 million of 11.0% Senior Notes (the "Senior Notes") due 2009, sold at a
price of 98.514% of par to yield 11.25% per annum, and substantially all of the
Company's cash on hand. The Notes were issued under an Indenture dated September
28, 1999 among the Company, each of the Company's current and future Restricted
Subsidiaries (as defined), as guarantors, and Firstar Bank, N.A., as trustee
(the "Indenture"). The Company also entered into a Credit Agreement dated as of
September 23, 1999 with European American Bank (the "Bank") to provide an
unsecured $30.0 million senior revolving credit facility (the "Credit
Agreement"). The following is a brief description of certain terms of the
Indenture and the Credit Agreement and is qualified in its entirety by reference
to the Indenture and the Credit Agreement which are filed as Exhibits (g)(4) and
(g)(5), respectively, hereto.
Interest on the Notes is payable semi-annually on March 15 and
September 15 of each year commencing on March 15, 2000 at the rate of 11.0% per
annum.
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The Company's payment obligations under the Notes are jointly and
severally unconditionally and irrevocably guaranteed by all of the Company's
current Restricted Subsidiaries and is to be similarly guaranteed by the
Company's future Restricted Subsidiaries. The Notes and the subsidiary
guarantees are senior unsecured obligations of the Company and the guarantor
subsidiaries, ranking PARI PASSU in right of payment to all of the Company's and
the guarantor subsidiaries' respective present and future senior debt, including
under the Credit Agreement.
The Indenture permits redemption of the Notes at the Company's option
at varying redemption prices and requires the Company to offer to purchase Notes
in the event of a Change of Control and in connection with certain Asset Sales
(each as defined).
The Indenture contains various covenants on the part of the Company and
its Restricted Subsidiaries, including, but not limited to, restrictions on
making of dividends, stock repurchases, certain investments and other restricted
payments, the incurrence of indebtedness and liens on its assets, affiliate
transactions, asset sales and mergers.
The Credit Agreement provides an unsecured revolving credit facility
(the "Credit Facility") to the Company enabling the Company to borrow, on a
revolving basis from time to time during its five-year term, up to $30.0
million, including a $10.0 million sublimit for standby letters of credit.
At the Company's option, the interest rates applicable to loans under
the Credit Agreement will be at either (a) the Bank's prime rate plus a margin
ranging from zero to 0.75% (the initial margin will be 0.50%) or (b) reserve
adjusted LIBOR plus a margin ranging from 1.5% to 2.5% (the initial margin will
be 2.25%). In each case, the margin depends upon the ratio of the Company's
senior debt (as defined) to its EBITDA (as defined).
Each of the Company's current Corporate Guarantors (as defined in the
Credit Agreement, being the Restricted Subsidiaries under the Indenture) have
agreed to, and the future Corporate Guarantors are to, unconditionally and
irrevocably guarantee the Company's obligations under the Credit Agreement on a
joint and several basis.
The Company has agreed to pay certain fees in connection with the
Credit Agreement, including an unused commitment fee at a rate per year that
will vary from 0.25% of the undrawn amount of the facility to 0.45% of the
undrawn amount of the facility per year, depending upon the ratio of the
Company's senior debt to EBITDA. Initially, the unused commitment fee will be
0.40% per year.
The Company's borrowings under the Credit Agreement are repayable on
September 28, 2004. In addition, the Company will be required to repay the
Company's loans and reduce the lenders commitments under the Credit Agreement
using the proceeds of certain asset sales and certain issuances of certain
equity interests of, and sales of equity interests in, Corporate Guarantors.
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The Credit Agreement contains various covenants, including, but not
limited to, restrictions on making of dividends and stock repurchases, certain
investments and other restricted payments, the incurrence of indebtedness,
guarantees and other contingent obligations, and liens on its assets, affiliate
transactions, asset sales and mergers, consolidations and acquisitions of stock
or assets by the Company and the Corporate Guarantors. In addition, the Credit
Facility contains provisions that under certain circumstances prohibit
redemptions or repurchases of the Notes, including repurchases that might
otherwise be required pursuant to the terms of the Indenture, and imposes
certain conditions on the Company's amending or supplementing the Indenture.
Additionally, the Company will have to maintain a minimum ratio of the Company's
consolidated EBITDA (with the Corporate Guarantors) to the Company's
consolidated interest expense (with the Corporate Guarantors) of at least 2.0 to
1.0 and a ratio of the Company's consolidated senior debt (with the Corporate
Guarantors) to the Company's consolidated EBITDA (with the Corporate Guarantors)
ranging from 4.5 to 1.0 in 1999 to 3.9 to 1.0 beginning December 29, 2002.
(d) The information set forth in "SUMMARY - Special Factors; Financing
of the Merger"; and "SPECIAL FACTORS - Financing of the Merger" of the Proxy
Statement is incorporated herein by reference.
ITEM 7. PURPOSE(S), ALTERNATIVES, REASONS AND EFFECTS.
(a) and (c) The information set forth in "SUMMARY - Special Factors;
Continuing Share holders' Purpose and Reasons for the Merger"; "SPECIAL FACTORS
- - Background of the Transaction"; and "SPECIAL FACTORS - The Continuing
Shareholders' Purpose and Reasons for the Merger" of the Proxy Statement is
incorporated herein by reference.
(b) The information set forth in "SPECIAL FACTORS - Background of the
Transaction" and "SPECIAL FACTORS - The Continuing Shareholders Purpose and
Reasons for the Merger" of the Proxy Statement is incorporated herein by
reference.
(d) The information set forth in "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER"; "SUMMARY - Information Concerning the Meeting; Purpose
of the Meeting"; "SUMMARY - Special Factors; Plans for the Company after the
Merger"; "SUMMARY - Special Factors; Interests of Certain Persons in the Merger
and the Company"; "SUMMARY - Special Factors; Certain Effects of the Merger";
"SUMMARY - Special Factors; Certain U.S. Federal Income Tax Consequences";
"SUMMARY - Special Factors; Accounting Treatment"; "SUMMARY - Special Factors;
Financing of the Merger"; "SUMMARY - The Restated Merger Agreement; The Merger
Consideration"; "SPECIAL FACTORS - The Continuing Shareholders Purpose and
Reasons for the Merger"; "SPECIAL FACTORS - Certain Financial Projections";
"SPECIAL FACTORS - Plans for the Company after the Merger"; "SPECIAL FACTORS -
Interests of Certain Persons in the Merger and the Company"; "SPECIAL FACTORS
Certain Effects of the Merger"; "SPECIAL FACTORS - Certain U.S. Federal Income
Tax Consequences"; "SPECIAL FACTORS - Fees and Expenses"; "SPECIAL FACTORS -
Accounting Treatment"; "SPECIAL FACTORS - Risk of Insolvency"; "THE RESTATED
MERGER
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<PAGE>
AGREEMENT - The Merger; Merger Consideration"; "THE RESTATED MERGER AGREEMENT -
The Exchange Fund; Payment for Shares of Common Stock"; "THE RESTATED MERGER
AGREEMENT - Treatment of Options"; and "THE RESTATED MERGER AGREEMENT - Tax
Withholding" of the Proxy Statement is incorporated herein by reference.
ITEM 8. FAIRNESS OF THE TRANSACTION.
(a) The information set forth on the Front Cover Page and in "CERTAIN
QUESTIONS AND ANSWERS ABOUT VOTING AND THE MERGER"; "SUMMARY - Special Factors;
Recom mendation of the Special Committee and the Board of Directors"; "SUMMARY -
Special Factors; Presentation and Fairness Opinion of Prudential Securities";
"SPECIAL FACTORS - Background of the Transaction"; "SPECIAL FACTORS -
Recommendations of the Special Committee and the Board of Directors"; "SPECIAL
FACTORS - The Continuing Shareholders' Purpose and Reasons for the Merger"; and
"SPECIAL FACTORS - Presentation and Fairness Opinion of Prudential Securities"
of the Proxy Statement is incorporated herein by reference.
(b) The information set forth in "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER"; "SUMMARY - Special Factors; Recommendation of the
Special Committee and the Board of Directors"; "SUMMARY - Special Factors;
Factors Considered by the Special Committee and the Board of Directors";
"SUMMARY - Special Factors; Presentation and Fairness Opinion of Prudential
Securities"; "SPECIAL FACTORS - Background of the Transaction"; "SPECIAL FACTORS
- - Recommendation of the Special Committee and the Board of Directors"; "SPECIAL
FACTORS - The Continuing Shareholders' Purpose and Reasons for the Merger";
"SPECIAL FACTORS - Presentation and Fairness Opinion of Prudential Securities";
"SPECIAL FACTORS - Certain Financial Projections"; "LITIGATION PERTAINING TO THE
MERGER Current Shareholder Litigation"; "THE RESTATED MERGER AGREEMENT - No
Solicitation; Fiduciary Obligation of Directors"; "THE RESTATED MERGER AGREEMENT
- - Conditions"; "THE RESTATED MERGER AGREEMENT - Termination" and "THE RESTATED
MERGER AGREEMENT - Amendment and Waiver" of the Proxy Statement is incorporated
herein by reference.
(c) The information set forth in "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER"; "SUMMARY - Information Concerning the Meeting; Voting
Requirements"; "SUMMARY - The Restated Merger Agreement; Conditions to, and
Termination of, the Merger"; "SPECIAL FACTORS - Recommendations of the Special
Committee and the Board of Directors"; "THE RESTATED MERGER AGREEMENT - The
Merger; Merger Consideration; "THE RESTATED MERGER AGREEMENT - Covenants"; "THE
RESTATED MERGER AGREEMENT - Conditions"; and "THE RESTATED MERGER AGREEMENT -
Termination" of the Proxy Statement is incorporated herein by reference.
(d) The information set forth in "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER"; "SUMMARY - Special Factors; Fairness Opinion of ;
"SPECIAL FACTORS - Background of the Transaction"; "SPECIAL FACTORS -
Recommendation of the
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Special Committee and the Board of Directors"; "SPECIAL FACTORS - The Continuing
Shareholders' Purpose and Reasons for the Merger"; and "SPECIAL FACTORS -
Presentation and Fairness Opinion of of the Proxy Statement is incorporated
herein by reference.
(e) The information set forth in "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER"; "SPECIAL FACTORS - Background of the Transaction";
"SPECIAL FACTORS - Recommendation of the Special Committee and the Board of
Directors"; and "SPECIAL FACTORS - The Continuing Shareholders' Purpose and
Reasons for the Merger" of the Proxy Statement is incorporated herein by
reference.
(f) The information set forth in "SPECIAL FACTORS - Background of the
Transaction" of the Proxy Statement is incorporated herein by reference.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND CERTAIN NEGOTIATIONS.
(a) and (b) The information set forth in "CERTAIN QUESTIONS AND ANSWERS
ABOUT VOTING AND THE MERGER"; "SUMMARY - Special Factors; Factors Considered by
the Special Committee and the Board of Directors"; "SUMMARY - Special Factors;
Fairness Opinion of ; "SPECIAL FACTORS - Background of the Transaction";
"SPECIAL FACTORS Recommendation of the Special Committee and the Board of
Directors"; "SPECIAL FACTORS The Continuing Shareholders' Purpose and Reasons
for the Merger"; and "SPECIAL FACTORS Presentation and Fairness Opinion of of
the Proxy Statement is incorporated herein by reference.
(c) The information set forth in "AVAILABLE INFORMATION" of the Proxy
Statement is incorporated herein by reference.
ITEM 10. INTEREST IN SECURITIES OF THE ISSUER.
(a) The information set forth in "SUMMARY - Information Concerning the
Meeting; Voting Requirements"; "SPECIAL FACTORS - Interests of Certain Persons
in the Merger and the Company"; and "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT" of the Proxy Statement is incorporated herein by
reference.
(b) The information set forth in "CERTAIN TRANSACTIONS IN THE COMMON
STOCK" of the Proxy Statement is incorporated herein by reference.
ITEM 11. CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH RESPECT
TO THE ISSUER'S SECURITIES.
The information set forth in "SUMMARY - Information Concerning the
Meeting; Voting Requirements"; "SUMMARY - The Restated Merger Agreement";
"SPECIAL FACTORS - Interests of Certain Persons in the Merger and the Company";
"SPECIAL FACTORS - Fees and Expenses"; "SPECIAL FACTORS - Financing of the
Merger"; and "THE RESTATED MERGER AGREEMENT" of the Proxy Statement is
incorporated herein by reference.
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ITEM 12. PRESENT INTENTION AND RECOMMENDATION OF CERTAIN PERSONS
WITH REGARD TO THE TRANSACTION.
(a) The information set forth in "SUMMARY - Information Concerning the
Meeting; Voting Requirements"; "SPECIAL FACTORS - Recommendation of the Special
Committee and the Board of Directors"; "THE RESTATED MERGER AGREEMENT -
Covenants"; and "CERTAIN TRANSACTIONS IN THE COMMON STOCK" of the Proxy
Statement is incorporated herein by reference.
(b) The information set forth in "SUMMARY - Special Factors;
Recommendation of The Special Committee and the Board of Directors"; "SPECIAL
FACTORS - Background of the Transaction"; "SPECIAL FACTORS - Recommendation of
the Special Committee and the Board of Directors" of the Proxy Statement is
incorporated herein by reference.
ITEM 13. OTHER PROVISIONS OF THE TRANSACTION.
(a) The information set forth in "CERTAIN QUESTIONS AND ANSWERS ABOUT
VOTING AND THE MERGER"; "SUMMARY - No Right of Appraisal"; and "LITIGATION
PERTAINING TO THE MERGER - Current Shareholder Litigation" of the Proxy
Statement is incorporated herein by reference.
(b) - (c) Not applicable.
ITEM 14. FINANCIAL INFORMATION.
(a) The information set forth in "WHERE YOU CAN FIND MORE INFORMATION";
and "CONSOLIDATED FINANCIAL STATEMENTS" of the Proxy Statement is incorporated
herein by reference.
(b) Not Applicable.
ITEM 15. PERSONS AND ASSETS EMPLOYED, RETAIN OR UTILIZED.
(a) The information set forth on the Front Cover Page and in "SUMMARY -
Special Factors; Plans for the Company after the Merger"; "SUMMARY - Special
Factors; Financing of the Merger"; "SPECIAL FACTORS - Plans for the Company
after the Merger; "SPECIAL FACTORS - Interests of Certain Persons in the Merger
and the Company"; "SPECIAL FACTORS - Fees and Expenses"; "SPECIAL FACTORS -
Financing of the Merger"; "THE RESTATED MERGER AGREEMENT Indemnification and
Insurance"; and "THE RESTATED MERGER AGREEMENT - Fees and Expenses" of the Proxy
Statement is incorporated herein by reference.
(b) The information set forth on the Front Cover Page and in "CERTAIN
QUESTIONS AND ANSWERS ABOUT VOTING AND THE MERGER"; and "SPECIAL FACTORS -
Interests of Certain Persons in the Merger and the Company; Compensation of the
Special Committee Members" of the Proxy Statement is incorporated herein by
reference.
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ITEM 16. ADDITIONAL INFORMATION.
The information set forth in "SUMMARY - Information Concerning the
Meeting" of the Proxy Statement is incorporated herein by reference.
Proxy Statement, together with the proxy card.
As noted in the Proxy Statement, an Order and Final Judgment was signed
on July 14, 1999 by the Court before which the class action lawsuits challenging
the Merger was brought, among other things, (a) approving the Stipulation of
Settlement and the settlement thereof and adjudging the terms of the Stipulation
of Settlement and the settlement to be fair, reasonable, adequate and in the
best interests of the class and (b) certifying the class action and class. On
August 16, 1999, the appeal period related to the Order and Final Judgment
expired. No appeals were filed.
At the Special Meeting of Shareholders of the Company held on August
13, 1999, the Merger Agreement was adopted by the affirmative vote of (i) at
least two-thirds of all outstanding shares of the Company's Common Stock in
accordance with the requirements of Section 903 of the New York Business
Corporation Law, such affirmative voting being 15,278,273 shares for, 727,372
shares against and 6,802 shares abstaining, and (ii) as required by the Merger
Agreement, at least a majority of the votes cast at the meeting, excluding the
votes cast by the Continuing Shareholders, abstentions and broker non-votes,
such affirmative voting being 8,213,945 shares for and 727,372 shares against.
The Merger occurred on September 28, 1999, upon the effectiveness of a
Certificate of Merger filed with the Department of State of the State of New
York, at which time, among other things, each outstanding share of Common Stock
owned by shareholders other than the Continuing Shareholders was converted into
the right to receive $28.85 in cash, without interest. The Company was the
surviving corporation in the Merger.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Debt Financing Letter, dated as of January 19, 1999.*
(b) (1) Presentation by Prudential Securities Incorporated to the
Special Committee, dated January 19, 1999.*
(b)(2) Opinion of Prudential Securities Incorporated, dated January
19, 1999 (set forth as Annex II to the Proxy Statement).*
(b)(3) Presentation by Bear, Stearns & Co. Inc. to certain Continuing
Shareholders, dated October 10, 1996 (in accordance with Rule
202 of Regulation S-T, Section II of the presentation is
filed in paper pursuant to a continuing hardship exemption).*
(b)(4) Presentation by Bear, Stearns & Co. Inc. to the Company's
Board of Directors, dated January 15, 1997.*
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(b)(5) Presentation by Bear, Stearns & Co. Inc. to the Company's
Board of Directors, dated January 23, 1997 (in accordance
with Rule 202 of Regulation S-T, the financial models of this
presentation are filed in paper pursuant to a continuing
hardship exemption).*
(b)(6) Presentation by Bear, Stearns & Co. Inc. to the Company's
Board of Directors, dated July 20, 1998.*
(b)(7) List of potential purchasers of the Company prepared in
August 1998.*
(b)(8) August 1998 confidential information memorandum sent to
potential purchasers of the Company.*
(b)(9) Presentation by Prudential Securities Incorporated to the
Special Committee, dated March 3, 1998.*
(c) (1) Amended and Restated Agreement and Plan of Merger between
Sbarro, Inc., Sbarro Merger LLC, Mario Sbarro, Joseph Sbarro,
Anthony Sbarro, the Joseph Sbarro (1994) Family Limited
Partnership and Mario Sbarro and Franklin Montgomery, not
individually but as trustees under that certain Trust
Agreement dated April 28, 1984 for the benefit of Carmela
Sbarro, dated as of January 19, 1999 (as amended June 17,
1999) (set forth as Annex I to the Proxy Statement).*
(d) (1) Definitive Proxy Statement (including Annexes I and II),
together with the proxy card.*
(e) Not applicable.
(f) As of the date of this Schedule 13E-3, no written instruction,
form or other material has been furnished to any person making
the actual oral solicitation or other recommendation for such
person's use, directly or indirectly, in connection with this
Rule 13e-3 transaction.
(g)(1) Memorandum of Understanding, dated January 19, 1999.*
(g)(2) Stipulation of Settlement dated April 7, 1999 among counsel to
the plaintiffs and counsel to the defendants in the Current
Shareholder Litigation (as defined in the Proxy Statement
filed as Exhibit (d)(1).*
(g)(3) Order and Final Judgment, dated July 14, 1999.*
(g)(4) Indenture dated as of September 28, 1999 among the Company,
the Restricted Subsidiaries of the Company named therein, as
guarantors, and Firstar Bank, as trustee. (Incorporated by
reference to Exhibit 4.1 to the Company's Current Report on
Form 8-K dated (date of earliest event reported) September 23,
1999, File No. 1- 8881.)
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(g)(5) Credit Agreement dated as of September 23, 1999 by and among
the Company and European American Bank, as Agent, and the
Lenders Party thereto (initially European American Bank).
(Incorporated by reference to Exhibit 4.2 to the Company's
Current Report on Form 8-K dated (date of earliest event
reported) September 23, 1999, File No. 1-8881.)
- ---------------------
* Filed with Amendment No. 5 to the Schedule 13e-3.
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<PAGE>
SIGNATURES
After due inquiry and to the best of my knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
SBARRO, INC.
By: /s/ Mario Sbarro
----------------------------------
Name: Mario Sbarro
Title: President and Chief Executive
Office
SBARRO MERGER LLC
By: /s/ Mario Sbarro
----------------------------------
Name: Mario Sbarro
Title: Member
/s/ Mario Sbarro
---------------------------------
Mario Sbarro
/s/ Joseph Sbarro
----------------------------------
Joseph Sbarro
/s/ Anthony Sbarro
----------------------------------
Anthony Sbarro
JOSEPH SBARRO (1994)
FAMILY LIMITED PARTNERSHIP
/s/ Joseph Sbarro
----------------------------------
Name: Joseph Sbarro
Title: General Partner
/s/ Mario Sbarro
-----------------------------------
Mario Sbarro, as trustee under that
certain Trust Agreement dated April
28, 1984 for the benefit of Carmela
Sbarro
/s/ Franklin Montgomery
------------------------------------
Franklin Montgomery, as trustee under
that certain Trust Agreement dated
April 28, 1984 for the benefit of
Carmela Sbarro
Dated: October 5, 1999
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
- ------ ------------
(a)(1) Debt Financing Letter, dated as of January 19, 1999.*
(b) (1) Presentation by Prudential Securities Incorporated to the
Special Committee, dated January 19, 1999.*
(b)(2) Opinion of Prudential Securities Incorporated, dated January
19, 1999 (set forth as Annex II to the Proxy Statement).*
(b)(3) Presentation by Bear, Stearns & Co. Inc. to certain Continuing
Shareholders, dated October 10, 1996 (in accordance with Rule
202 of Regulation S-T, Section II of the presentation is filed
in paper pursuant to a continuing hardship exemption).*
(b)(4) Presentation by Bear, Stearns & Co. Inc. to the Company's
Board of Directors, dated January 15, 1997.*
(b)(5) Presentation by Bear, Stearns & Co. Inc. to the Company's
Board of Directors, dated January 23, 1997 (in accordance
with Rule 202 of Regulation S-T, the financial models of this
presentation are filed in paper pursuant to a continuing
hardship exemption).*
(b)(6) Presentation by Bear, Stearns & Co. Inc. to the Company's
Board of Directors, dated July 20, 1998.*
(b)(7) List of potential purchasers of the Company prepared in
August 1998.*
(b)(8) August 1998 confidential information memorandum sent to
potential purchasers of the Company.*
(b)(9) Presentation by Prudential Securities Incorporated to the
Special Committee, dated March 3, 1998.*
(c) (1) Amended and Restated Agreement and Plan of Merger between
Sbarro, Inc., Sbarro Merger LLC, Mario Sbarro, Joseph Sbarro,
Anthony Sbarro, the Joseph Sbarro (1994) Family Limited
Partnership and Mario Sbarro and Franklin Montgomery, not
individually but as trustees under that certain Trust
Agreement dated April 28, 1984 for the benefit of Carmela
Sbarro, dated as of January 19, 1999 (as amended June 17,
1999) (set forth as Annex I to the Proxy Statement).*
(d) (1) Definitive Proxy Statement (including Annexes I and II),
together with the proxy card.*
<PAGE>
(e) Not applicable.
(f) As of the date of this Schedule 13E-3, no written instruction,
form or other material has been furnished to any person making
the actual oral solicitation or other recommendation for such
person's use, directly or indirectly, in connection with this
Rule 13e-3 transaction.
(g) (1) Memorandum of Understanding, dated January 19, 1999.*
(g)(2) Stipulation of Settlement dated April 7, 1999 among counsel to
the plaintiffs and counsel to the defendants in the Current
Shareholder Litigation (as defined in the Proxy Statement
filed as Exhibit (d)(1).*
(g)(3) Order and Final Judgment, dated July 14, 1999.*
(g)(4) Indenture dated as of September 28, 1999 among the Company,
the Restricted Subsidiaries of the Company named therein, as
guarantors, and Firstar Bank, as trustee. (Incorporated by
reference to Exhibit 4.1 to the Company's Current Report on
Form 8-K dated (date of earliest event reported) September 23,
1999, File No. 1- 8881.)
(g)(5) Credit Agreement dated as of September 23, 1999 by and among
the Company and European American Bank, as Agent, and the
Lenders Party thereto (initially European American Bank).
(Incorporated by reference to Exhibit 4.2 to the Company's
Current Report on Form 8-K dated (date of earliest event
reported) September 23, 1999, File No. 1-8881.)
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* Filed with Amendment No. 5 to the Schedule 13e-3.
