SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Filed by the Registrant [X]
Filed by a party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[X] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss.240.14a-11(c) or ss.240.14a-12
Sbarro, Inc.
-----------
(Name of Registrant as Specified in Its Charter)
----------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[ ] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11
1) Title of each class of securities to which transaction applies:
Common Stock, $.01 par value
2) Aggregate number of securities to which transaction applies:
20,531,977
3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the
amount on which the filing fee is calculated and state how it
was determined): $28.85
4) Proposed maximum aggregate value of transaction: $395,649,643
(includes amount being paid with respect to the termination of
stock options)
5) Total fee paid: $79,129.93
[X] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
<PAGE>
[TO BE MAILED TO CLASS MEMBERS]
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- ----------------------------------------------------------)
PETER SALIT, BARRY ADELMAN, )
DAVID FINKELSTEIN, LEE BRENIN, CHARTER )
CAPITAL CORP., GRUNTAL FINANCIAL LLC )
SAVINGS PLAN A/C/ NORMAN EPSTEIN, HARBOR )
FINANCE PARTNERS, LIST, INC. and WAYNE )
CRIMI, On Behalf of Themselves and All Others )
Similarly Situated, ) Consolidated
)
Plaintiffs, ) Index No. 98-605796
)
- against - )
)
SBARRO, INC., JOSEPH SBARRO, ANTHONY )
SBARRO, MARIO SBARRO, CARMELA SBARRO, )
TERRY VINCE, HAROLD L. KESTENBAUM, )
RICHARD A. MANDELL, PAUL A. VATTER )
and BERNARD ZIMMERMAN, )
)
Defendants. )
- ----------------------------------------------------------)
NOTICE OF PENDENCY OF CLASS ACTION,
PROPOSED SETTLEMENT OF CLASS ACTION
AND SETTLEMENT HEARING
----------------------
TO: ALL RECORD AND BENEFICIAL OWNERS OF THE COMMON STOCK OF SBARRO, INC.
DURING THE PERIOD BEGINNING ON AND INCLUDING THE CLOSE OF BUSINESS ON
NOVEMBER 25, 1998 THROUGH AND INCLUDING THE DATE THE PROPOSED MERGER
BETWEEN SBARRO AND AN ENTITY FORMED BY THE SBARRO FAMILY (AS DEFINED
BELOW) IS CONSUMMATED (THE "MERGER DATE"), INCLUDING ANY AND ALL OF
THEIR PERSONAL REPRESENTATIVES, HEIRS, ESTATES, ADMINISTRATORS,
EXECUTORS, TRUSTEES, PREDECESSORS IN INTEREST, TRANSFEREES, SUCCESSORS
AND ASSIGNS, IMMEDIATE AND REMOTE, AND ANY PERSON OR ENTITY ACTING FOR
OR ON BEHALF OF, OR CLAIMING UNDER, ANY OF THEM, AND EACH OF THEM, BUT
EXCLUDING THE DEFENDANTS IN THE ACTIONS, SBARRO MERGER LLC, THE SBARRO
FAMILY AND THEIR RESPECTIVE PERSONAL REPRESENTATIVES, HEIRS, ESTATES,
ADMINISTRATORS, EXECUTORS, TRUSTEES, PREDECESSORS IN INTEREST,
SUCCESSORS AND ASSIGNS.
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS WILL
BE AFFECTED BY THE LEGAL PROCEEDINGS IN THIS LITIGATION. IF YOU WERE
NOT THE BENEFICIAL HOLDER OF SBARRO STOCK BUT HELD SBARRO STOCK FOR A
BENEFICIAL HOLDER, PLEASE TRANSMIT THIS DOCUMENT TO SUCH BENEFICIAL
HOLDER.
<PAGE>
1. This notice is given pursuant to Article 9 of the New York Civil
Practice Law and Rules ("CPLR") and pursuant to an Order of this Court entered
in the above-captioned consolidated actions (the "Actions") to all record and
beneficial owners of Sbarro, Inc. ("Sbarro" or the "Company") common stock
during the period beginning on and including the close of business on November
25, 1998 through and including the Merger Date, including any and all of their
personal representatives, heirs, estates, administrators, executors, trustees,
predecessors in interest, transferees, successors and assigns, immediate and
remote, and any person or entity acting for or on behalf of, or claiming under,
any of them, and each of them, but excluding the Defendants in the Actions,
Mergeco, the Sbarro Family and their respective personal representatives, heirs,
estates, administrators, executors, trustees, predecessors in interest,
successors and assigns (the "Class").
2. On May 11, 1999, the Court entered an order (the "Scheduling Order")
which, among other things, (a) consolidated the Actions for all purposes; (b)
preliminarily found the Settlement described herein (the "Settlement") to be
fair, reasonable, adequate and in the best interests of the Class, subject to a
final determination based upon the record before the Court at the Settlement
Hearing described below; and (c) determined, solely for purposes of the
Settlement, that the Actions may be maintained as a class action by the named
plaintiffs as representatives of the Class, and naming the law firms of Abbey,
Gardy & Squitieri, LLP, Bernstein Litowitz Berger & Grossmann LLP, and Goodkind
Labaton Rudoff & Sucharow LLP as Co-Lead Counsel for the Class ("Class
Counsel").
SETTLEMENT HEARING
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3. Members of the Class have an interest in these proceedings and are
hereby notified that a hearing (the "Settlement Hearing") shall be held on June
29, 1999, at 10:30 a.m. in the Supreme Court of the State of New York, County of
New York, in Part 10, Room 222, 60 Centre Street, New York, New York 10007 to
determine the following issues:
a. whether the Court should approve the Settlement pursuant to
CPLR 908 as fair, reasonable, adequate and in the best interest of the Class;
b. whether the Stipulation of Settlement dated April 7, 1999
(the "Stipulation") and the terms and conditions of the Settlement should be
finally approved by the Court;
c. whether an Order and Final Judgment should be entered by
the Court dismissing the Actions as to all defendants with prejudice and on the
merits and with each party to bear its own expenses (except as provided in the
Stipulation) as against the plaintiffs and all members of the Class except those
persons who submit a valid and timely request for exclusion from the Class in
the manner described below, and extinguish, release and enjoin prosecution of
any and all Settled Claims (the "Order and Final Judgment");
d. to hear and determine such other matters as the Court may
deem necessary; and
e. in the event the Court approves the Settlement and enters
the Order and Final Judgment, to consider an application by Class Counsel for an
award of attorneys' fees and expenses, as described below.
4. The Court has reserved the right to adjourn the Settlement Hearing,
including consideration of the application for attorneys' fees and expenses,
without further notice other than by oral announcement at the Settlement Hearing
or any adjournment thereof. The Court also has reserved the right to approve the
Settlement
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<PAGE>
at or after the Settlement Hearing with such modifications as may be consented
to by the parties to the Stipulation and without further notice to the Class.
SUMMARY OF SETTLEMENT
---------------------
The Actions and the Settlement address claims arising out of a
proposed merger of an entity formed by Defendants Mario Sbarro, Joseph Sbarro
and Anthony Sbarro (including Joseph Sbarro (1994) Family Limited Partnership
and The Trust of Carmela Sbarro, entities participating with such Defendants
(collectively, the "Sbarro Family"), under which all outstanding common stock of
Sbarro not owned by the Sbarro Family (the "Public Shares") would be exchanged
for cash (the "Merger"). Pursuant to the Settlement described herein, the price
to be paid for the Public Shares in the Merger has been increased to $28.85 per
share, a $1.35 per share increase from the $27.50 per share previously proposed
by the Sbarro Family. This per share increase represents an aggregate increase
of approximately $18.2 million. In consideration of this increase to be paid for
the Public Shares, among other things, plaintiffs in the Actions have agreed,
subject to consummation of the Merger and the approval of the Settlement by the
Court, to the dismissal of their claims relating to the Merger. A more complete
description of the Settlement is set forth below.
FACTUAL BACKGROUND
------------------
The following description of the Actions and the Settlement
have been prepared by counsel for the parties. The Court has made no findings
with respect to such matters, and this Notice is not an expression by the Court
of any findings of fact or of law.
A. Defendant Sbarro is a New York corporation with its principal
executive offices located at 401 Broadhollow Road, Melville, New York 11747.
Sbarro operates a chain of family-style, cafeteria-type Italian restaurants
under the "Sbarro" and "Sbarro The Italian Eatery" names. As of January 3, 1999,
Sbarro had 630 Company-owned and 268 franchised restaurants in the United States
and abroad.
B. Defendants Mario Sbarro, Joseph Sbarro, Anthony Sbarro, Carmela
Sbarro, Terry Vince, Harold L. Kestenbaum, Richard A. Mandell, Paul A. Vatter
and Bernard Zimmerman (collectively, the "Individual Defendants" and together
with Sbarro, the other defendant in the Actions, the "Defendants") are, and were
at all times relevant to this litigation, officers and/or directors of Sbarro.
C. On January 20, 1998, Sbarro announced that it had received a
proposal from the Sbarro Family, owners of approximately 34.4% of Sbarro's
presently outstanding common stock (Sbarro's only outstanding class of capital
stock), pursuant to which all other holders of Sbarro common stock (the "Public
Shareholders") would receive $28.50 cash per share for their Sbarro shares in a
transaction structured as a cash merger with a company to be owned by the Sbarro
Family (the "Initial Merger Proposal"). The Initial Merger Proposal was
terminated in June 1998.
D. Following the close of business on November 25, 1998, Sbarro
announced that it had received a proposal from the Sbarro Family pursuant to
which the Public Shareholders would receive $27.50 cash per share for their
Sbarro shares in a transaction to be structured as a cash merger of an entity to
be owned by the Sbarro Family with and into the Company (the "Revised Merger
Proposal"). Sbarro named a Special Committee of its Board of Directors,
consisting of Defendants Richard A. Mandell, Harold L. Kestenbaum, Paul A.
Vatter and Terry Vince, to consider the Revised Merger Proposal.
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<PAGE>
E. Following the announcement of the Revised Merger Proposal, the
following putative class actions challenging the Revised Merger Proposal were
filed by Sbarro shareholders in the Supreme Court of the State of New York,
County of New York: Lee Brenin v. Mario Sbarro, et al., Index No. 98-605796;
Peter Salit v. Sbarro, Inc. et al., Index No. 98-605801; David Finkelstein v.
Sbarro, Inc. et al., Index No. 98-605827; Barry Adelman v. Mario Sbarro, et al.,
Index No. 98-605847; Charter Capital et al. v. Joseph Sbarro et al., Index No.
99-100884. In addition, the following putative class actions challenging the
Revised Merger Proposal were filed by Sbarro shareholders in the Supreme Court
of the State of New York, County of Suffolk: Charter Capital Corp. v. Joseph
Sbarro et al., Index No. 98-27736; Harbor Finance Partners and List, Inc. v.
Mario Sbarro et al., Index No. 98-27723; and Gruntal Financial LLC Savings Plan
A/C Norman Epstein v. Richard A. Mandell et al., Index No. 98-27200. The actions
filed in the County of Suffolk were voluntarily discontinued in order to pursue
the litigation in the County of New York. The Actions challenged the Revised
Merger Proposal alleging, among other things, that the $27.50 per share merger
consideration to be paid to the Public Shareholders was inadequate. The Actions
sought, among other things, to enjoin the consummation of the proposed
transaction or, in the alternative, to rescind the transaction if it takes
place, unspecified money damages and attorney's fees and expenses.
F. Following the filing of the Actions, counsel for plaintiffs in the
Actions ("plaintiffs' counsel") and their financial expert met with the Special
Committee's Chairman, counsel and financial advisor, and conducted negotiations
with the Sbarro Family, in an effort to reach a settlement of the Actions.
G. As a result of the discussions and negotiations that the Sbarro
Family had with plaintiffs' counsel and with the Special Committee, the Sbarro
Family agreed to raise the price to be paid to the Public Shareholders in the
proposed Merger to $28.85 per share (the "Increased Merger Consideration"), or
to an aggregate of approximately $388.6 million, representing an increase per
share of $1.35, or an aggregate increase of approximately $18.2 million, from
the Revised Merger Proposal announced on November 25, 1998 (the "Final Merger
Proposal"). The Final Merger Proposal was made expressly contingent upon the
adoption of the Agreement and Plan of Merger dated January 19, 1999 among the
Company, Sbarro Mergeco LLC ("Mergeco") and the Sbarro Family (the "Merger
Agreement") by the holders of a majority of the shares of Sbarro common stock
owned by the Public Shareholders (the "Public Shareholders Voting Requirement"),
as well as by two-thirds of all outstanding shares of Sbarro common stock (the
"Statutory Voting Requirement").
H. On January 19, 1999, the following events occurred:
1. After receiving a written opinion from its financial
advisor, Prudential Securities Incorporated ("Prudential"), that, as of the date
of the Merger Agreement, the Increased Merger Consideration was fair, from a
financial point of view, to the Public Shareholders, the Special Committee
concluded that the Merger, as reflected in a proposed Merger Agreement, was fair
to, and in the best interests of, the Company and the Public Shareholders, and
unanimously resolved to recommend that Sbarro's Board of Directors adopt the
Merger Agreement;
2. After a presentation by the Special Committee and based, in
part, on the recommendation of the Special Committee and the fairness opinion
received from Prudential, Sbarro's Board of Directors also determined that the
Merger was fair to, and in the best interests of, the Company and the Public
Shareholders and adopted the Merger Agreement. Consummation of the Merger
Agreement is conditioned upon, among other things: (i) fulfillment of the Public
Shareholder Voting Requirement, as well as of the Statutory Voting Requirement;
(ii) receipt of financing for the transactions contemplated by the Merger
Agreement; (iii) the continued suspension of dividends by the Company; and (iv)
settlement of the Actions; and
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<PAGE>
3. The parties to the Actions executed a memorandum of
understanding (the "MOU"), which contemplates the settlement and dismissal of
the Actions pursuant to the Stipulation.
I. The Sbarro Family agreed to the Final Merger Proposal after
considering the existence of the Actions and the desirability of satisfactorily
addressing the claims set forth in the Actions.
J. Pursuant to the Merger Agreement and subject to the terms and
conditions thereof, Mergeco, a New York limited liability company formed by the
Sbarro Family for the purpose of the Merger, will be merged with and into Sbarro
with each then outstanding share of the Company's common stock, other than
shares held of record by Mergeco or the Continuing Shareholders or in the
Company's treasury, to be converted into the right to receive the Increased
Merger Consideration in cash, without interest. In addition, all outstanding
stock options, including those held by the Sbarro Family, will be terminated,
with the holders thereof to be paid the difference between the Increased Merger
Consideration and the applicable exercise price per share multiplied by the
total number of shares of Sbarro common stock subject to such option.
K. Following execution of, and pursuant to, the MOU, plaintiffs'
counsel: (i) continued their investigation and legal analysis of the matters
alleged in the Actions and consulted with their financial advisor; (ii) engaged
in additional discovery, including documentary discovery and the depositions of
the Chairman and Chief Executive Officer of Sbarro, the Chairman of the Special
Committee, and a Managing Director of Prudential; and (iii) reviewed and
commented upon a draft of the proxy statement which will be provided to Sbarro
shareholders in connection with the Merger (the "Proxy Statement").
L. In light of the aforementioned investigation, the additional facts
developed in discovery, the events, negotiations and agreements described above,
and analysis of applicable law, counsel for plaintiffs in the Actions have
concluded that the terms and conditions of the Settlement provided for in the
Stipulation are fair, reasonable, adequate and in the best interests of the
plaintiffs and the Class.
M. Plaintiffs entered into the Stipulation after taking into account:
(i) the substantial benefits to the members of the Class from the Merger
Agreement, including the Increased Merger Consideration and the Public
Shareholder Voting Requirement; (ii) the risks of continued litigation; and
(iii) the conclusion of plaintiffs' counsel that the terms and conditions of the
Settlement are fair, reasonable, adequate and in the best interests of the
Public Shareholders. Plaintiffs and plaintiffs' counsel have agreed to the terms
of the Settlement because, in their view, the Settlement achieves plaintiffs'
principal objectives in the litigation, which are to maximize shareholder value
for the Company's shareholders and to provide additional representation for the
Public Shareholders.
N. All the defendants in the Actions have denied and continue to deny
vigorously any liability with respect to any and all claims alleged in the
Actions, expressly deny having engaged in any wrongful or illegal activity, or
having violated any law or regulation or duty, and expressly deny that any
person or entity has suffered any harm or damages as a result of the Settled
Claims (as defined in paragraph 5 below). While denying any fault or wrongdoing,
and relying on the provision of the Stipulation that it shall, in no event, be
construed as or deemed to be evidence of an admission or concession on the part
of Defendants or any Released Person (as defined in paragraph 5 below) of any
fault or liability whatsoever, and without conceding any infirmity in their
defenses against the claims alleged in the Actions, Defendants consider it
desirable that the Actions be settled and dismissed, subject to the terms and
conditions of the Stipulation, because the Settlement will (i) halt the
substantial expense, inconvenience and distraction of continued litigation of
plaintiffs' claims; (ii) finally put to rest those claims; and (iii) dispel any
uncertainty that may exist as a result of this litigation. The Court has made
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<PAGE>
no finding that Defendants engaged in any wrongdoing or wrongful conduct or
otherwise acted improperly or in violation of any law or regulation or duty in
any respect.
THE SETTLEMENT TERMS
--------------------
The following are the principal provisions set forth in the
Stipulation:
THE SETTLEMENT
1. In consideration for the full settlement, satisfaction, compromise
and release of the Settled Claims (as defined below), and in furtherance of the
Final Merger Proposal and the Merger Agreement, the parties to the Actions have
agreed to settle the Actions upon the terms and conditions described below.
2. The Sbarro Family has agreed to the payment of the Increased Merger
Consideration upon consummation of the Merger as a result of the discussions and
negotiations described above, and after also considering the desirability of
obtaining the dismissal, release and discharge of the Released Persons (as
defined below) of and from all Settled Claims.
3. As further consideration for the Settlement, Sbarro has agreed to
pay all costs incurred in identifying members of the Class and notifying by mail
the members of the Class of the Settlement, including the printing and copying
of this Notice and publication of the Summary Notice.
4. Class Counsel have agreed to the Settlement described herein after
having reviewed a draft of the Proxy Statement to satisfy themselves that the
Proxy Statement would fully and fairly disclose all material information. The
Increased Merger Consideration in the Final Merger Proposal, as reflected in the
terms of the Merger Agreement, together with the opportunity of plaintiff's
counsel to review and comment on the Proxy Statement, furnishes consideration
for plaintiffs' agreement to release and forever discharge each of the
Defendants from the Settled Claims.
SETTLED CLAIMS
5. Subject to the Settlement becoming final as contemplated in
paragraph 8 below, any and all claims, demands, rights, actions or causes of
action, rights, liabilities, damages, losses, obligations, judgments, suits,
matters and issues of any kind or nature, known or unknown, that have been or
could have been asserted in the Actions or in any court, tribunal or proceeding
by or on behalf of any member of the Class (who has not elected to be excluded
from the Class in the manner described below), whether individual, class,
representative, derivative, legal, equitable or any other type or in any other
capacity relating to the claims asserted in the Actions (collectively, the
"Settled Claims") against Defendants in the Actions, Mergeco, the Sbarro Family
or any of their families, parent entities, associates, affiliates or
subsidiaries, and each and all of the foregoing's past, present or future
officers, directors, shareholders, members, employees, attorneys, financial or
investment advisors, consultants, accountants, investment bankers, commercial
bankers, engineers, advisors or agents, general or limited partners or
partnerships, and the personal representatives, heirs, estates, administrators,
executors, trustees, predecessors in interest, successors and assigns of each of
the foregoing (collectively, the "Released Persons") shall be fully, finally and
forever compromised, settled, discharged and dismissed with prejudice and on the
merits and released pursuant to the terms and conditions set forth herein,
provided however, that the parties hereto expressly reserve all rights and
claims to enforce compliance with the terms of the Stipulation. With respect to
any and all claims being settled and released, it is the intention of the
parties hereto that, upon the
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Settlement becoming final, plaintiffs and each member of the Class who has not
elected to be excluded from the Class, hereby expressly waive and relinquish, to
the fullest extent permitted by law, the provisions, rights, and benefits of
Section 1542 of the California Civil Code, which statute provides that:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
RIGHTS TO WITHDRAW FROM THE SETTLEMENT
6. Defendants, by action taken by a majority of Defendants Mario
Sbarro, Joseph Sbarro and Anthony Sbarro, or plaintiffs, by action taken by
plaintiffs' Co-Lead Counsel, shall have the option to withdraw from and
terminate the Settlement in the event that: (i) the Order and Final Judgment
referred to below is not entered substantially in the form agreed, including
such modifications thereto as may be ordered by the Court with the consent of
the parties; (ii) the Settlement is not approved by the Court or is disapproved,
or the Court or appellate court requests the parties to make a material
modification to the Settlement to which the parties do not consent; (iii) the
condition to finality of the Settlement set forth in clause (ii) of paragraph 8
below shall not have been satisfied; or (iv) the Merger Agreement is terminated.
ORDER AND FINAL JUDGMENT
7. If the Settlement (including any modification thereto made with the
consent of the parties) is approved by the Court, the parties shall promptly
request the Court to enter an Order and Final Judgment, which will, among other
things:
a. determine that the Class has been adequately represented in
the Actions and the Settlement;
b. approve the Stipulation and the Settlement and adjudge the
terms thereof to be fair, reasonable, adequate and in the best interests of the
Class;
c. determine that the requirements of CPLR Article 9 and due
process have been satisfied in connection with notice to the Class;
d. dismiss, as to all Released Persons, the Actions with
prejudice and without costs except as herein provided, and extinguish, discharge
and release any and all Settled Claims of each plaintiff and each other Class
member, except those persons who submit a valid and timely Request for
Exclusion, said dismissal to be subject only to the Settlement becoming final as
contemplated in paragraph 8 below and compliance by the parties with the terms
of the Stipulation and any Order of the Court concerning the Stipulation, and
permanently enjoin plaintiffs and all other members of the Class, except those
persons who submit a valid and timely Request for Exclusion, from asserting,
commencing, prosecuting or continuing, either directly, individually,
representatively, derivatively or in any other capacity, any of the Settled
Claims against Mergeco, the Sbarro Family or any Released Person; and
e. without affecting the finality of the Order and Final
Judgment, reserve the Court's jurisdiction over all of the parties and the Class
members, except those who submit a valid and timely Request
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<PAGE>
for Exclusion, for the administration of the terms of the Settlement and the
Stipulation and the application of plaintiffs' counsel for an award of
attorneys' fees and expenses.
FINALITY OF SETTLEMENT
8. The approval of the Settlement shall be considered final when the
following three events have occurred: (i) entry of the Order and Final Judgment
approving the Settlement; (ii) expiration of any applicable appeal period for
the appeal of the Order and Final Judgment without an appeal having been filed
or, if an appeal is filed, entry of an order affirming the Order and Final
Judgment appealed from and the expiration of any applicable period for the
reconsideration, rehearing or appeal of such affirmance without any motion for
reconsideration or rehearing or further appeal having been filed; and (iii)
consummation of the Merger.
9. In the event the Settlement is not approved by the Court, or the
Court approves the Settlement but such approval is reversed or vacated on
appeal, reconsideration or otherwise and such order reversing or vacating the
Settlement becomes final by lapse of time or otherwise, or if any of the
conditions to such Settlement are not fulfilled, then the Settlement shall be of
no further force and effect, and the Stipulation and any amendment thereof (with
certain exceptions provided therein), and all negotiations, proceedings and
statements relating thereto, shall be null and void and without prejudice to any
party, and each party shall be restored to his, her or its respective position
as it existed prior to the execution of the MOU.
ATTORNEYS' FEES
10. At or before the Settlement Hearing, plaintiffs' counsel will apply
for an award of attorneys' fees (inclusive of expenses), not to exceed
$2,100,000, subject to the Settlement becoming final, as contemplated in
paragraph 8 above. Defendants have agreed that they will not object to such an
application by plaintiffs' counsel, but Defendants retain the right to oppose
any other application for fees or disbursements by plaintiffs, plaintiffs'
counsel or any other person. Any fee and expense award to plaintiffs' counsel
shall be paid exclusively by Sbarro on behalf of and for the benefit of all
Defendants. The fairness, reasonableness and adequacy of the Settlement, and
whether the Settlement is in the best interests of the Public Shareholders, may
be considered and ruled upon by the Court independently of its consideration of
any award of attorneys' fees and expenses. No counsel for plaintiffs shall apply
to any court for any fees and expenses except as provided for in this paragraph.
The award of attorneys' fees and expenses will not in any way reduce the amounts
payable to Sbarro shareholders pursuant to the Merger.
YOUR RIGHT TO APPEAR AT THE SETTLEMENT HEARING
----------------------------------------------
11. Any member of the Class who does not request exclusion from the
Class and who objects to the Stipulation, the Settlement, the Order and Final
Judgment, and/or the application for attorneys' fees and expenses, or who
otherwise wishes to be heard, may appear in person or by their attorney at the
Settlement Hearing and present any evidence or argument that may be proper and
relevant; provided however, that no person other than plaintiffs, Class Counsel,
Defendants and counsel for Defendants in the Actions shall be heard, and no
papers, briefs, pleadings or other documents submitted by any such person shall
be received and considered by the Court (unless the Court in its discretion
shall thereafter otherwise direct, upon application of such person and for good
cause shown) unless no later than ten (10) days prior to the Settlement Hearing,
such person files with the Court (i) written notice of their intention to
appear; (ii) a detailed statement of their objections to any matter before the
Court; (iii) the grounds therefor or the reasons why they desire to appear and
to be heard; (iv) a statement of the number of shares of Sbarro common stock
owned by such person as of the close of business
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on November 25, 1998 and any transactions in Sbarro common stock from that date
until the submission of their objection; and (v) documents and writings which
such person desires the Court to consider, and, on or before or such filing,
serves a copy of their filing by hand or overnight mail on the following counsel
of record:
Arthur N. Abbey
Abbey Gardy & Squitieri LLP
212 East 39th Street
New York, NY 10016
Jeffrey A. Klafter
Bernstein Litowitz Berger & Grossmann LLP
1285 Avenue of the Americas
New York, NY 10019
Jonathan M. Plasse
Goodkind Labaton Rudoff & Sucharow LLP
100 Park Avenue
New York, NY 10017
Class Counsel
Joel M. Wolosky
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, NY 10036
Attorneys for Defendants Sbarro, Inc. and
Bernard Zimmerman
Stephen W. Greiner
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
Attorneys for Defendants Richard A. Mandell,
Harold L. Kestenbaum, Paul Vatter and
Terry Vince
Arthur A. Katz
Warshaw Burstein Cohen Schlesinger & Kuh, LLP
555 Fifth Avenue
New York, NY 10017
Attorneys for Defendants Joseph Sbarro,
Anthony Sbarro, Mario Sbarro and
Carmela Sbarro
12. Any person who fails to object in the manner prescribed above shall
be deemed to have waived such objection and shall be forever barred from raising
such objection in the Actions or any other action or proceedings.
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YOUR RIGHT TO EXCLUDE YOURSELF FROM THE SETTLEMENT
--------------------------------------------------
13. If you are a Class member, you will be bound by all determinations,
orders and judgments of the Court in the Actions, whether favorable or
unfavorable, unless you mail, by first class mail, a written request for
exclusion from the Class, postmarked no later than June 18, 1999, addressed to
counsel for all parties at the addresses listed in paragraph 11 above. You may
not exclude yourself from the Class after that date. In order to be valid, your
request must legibly set forth your name and address and a statement that you
wish to be excluded from the Class. You must also provide the names in which
your Sbarro shares were registered, your Social Security or Taxpayer
Identification Number and the number of shares of Sbarro common stock you owned
as of the close of business on November 25, 1998 and any transactions in Sbarro
common stock from that date until the submission of your Request for Exclusion.
Any member of the Class who requests exclusion from the Class must request
exclusion with respect to all shares of which he, she or it is the beneficial
owner, and any Class member who requests exclusion from the Class with respect
to shares whose beneficial ownership is shared in any way must request exclusion
together with all other persons with whom such ownership is shared. If signing a
Request for Exclusion on behalf of any entity (such as a trust corporation,
partnership, limited liability company or estate), you must enclose evidence of
your authority to act for such entity and provide the foregoing information with
respect to that entity.
INTERIM INJUNCTION
------------------
14. Pending final determination of whether the Settlement should be
approved, plaintiffs and all members of the Class, are barred and enjoined from
commencing, continuing, asserting or prosecuting any action or claims, either
directly, individually, representatively, derivatively or in any other capacity,
against Mergeco, the Sbarro Family or any Defendant which are Settled Claims.
SCOPE OF THIS NOTICE AND FURTHER INFORMATION
--------------------------------------------
15. This Notice does not purport to be a comprehensive description of
the Actions, the allegations or transactions related thereto, the terms of the
Stipulation, the Settlement or the Settlement Hearing. For a more detailed
statement of the matters involved in this litigation, you may inspect the
pleadings, the Stipulation, the Orders entered by the Court and other papers
filed in the litigation, at the Office of the Clerk of the Supreme Court of the
State of New York, County of New York, 60 Centre Street, New York, New York
10007 during regular business hours of each business day.
DO NOT WRITE OR TELEPHONE THE COURT.
NOTICE TO PERSON OR ENTITIES HOLDING
RECORD OWNERSHIP ON BEHALF OF OTHERS
------------------------------------
16. Brokerage firms, banks and other persons or entities who are
members of the Class in their capacities as record owners, but not as beneficial
owners, are requested to send this notice promptly to beneficial owners.
Additional copies of this notice, for transmittal to beneficial owners, are
available on request directed to: Sbarro, Inc. 401 Broadhollow Road, Melville,
New York 11747, Attention: Vice President-Finance. Reasonable expenses of
forwarding this notice to beneficial owners will be reimbursed by Sbarro and
should be addressed to: Sbarro, Inc. 401 Broadhollow Road, Melville, New York
11747, Attention: Vice President-Finance.
BY ORDER OF THE COURT:
Beatrice Shainswit
J.S.C.
Dated: May 17, 1999
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