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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 2)
Solicitation/Recommendation Statement
Pursuant to Section 14(d) (4) of the
Securities Exchange Act of 1934
(Name of Subject Company)
Common Stock, $.005 par value per share
(Title of Class of Securities)
086063 10 4
(CUSIP Number of Class of Securities)
Joseph Crugnale
President
Bertucci's, Inc.
14 Audubon Road
Wakefield, Massachusetts 01880
(781) 246-6700
(Name, address and telephone number of person
authorized to receive notices and communications on
behalf of the person(s) filing statement)
With a copy to:
James Westra, Esq.
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
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This Amendment No. 2 further amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 filed with the
Securities and Exchange Commission (the "Commission") by Bertucci's, Inc., a
Massachusetts corporation (the "Company"), on May 20, 1998 (as heretofore
amended, the "Schedule 14D-9"), and relates to the tender offer made by NERC
Acquisition Corp., a Massachusetts corporation ("Purchaser") and wholly owned
subsidiary of NE Restaurant Company, Inc., a Delaware corporation ("Parent"),
disclosed in a Tender Offer Statement on Schedule 14D-1 filed with the
Commission on May 20, 1998, as heretofore amended, to purchase all of the
outstanding shares of the Company's common stock, $.005 par value per share
("Company Common Stock"), at a purchase price of $10.50 per share of Company
Common Stock, net to the seller in cash, on the terms and subject to the
conditions set forth in the Purchaser's Offer to Purchase, dated May 20, 1998,
and the related Letter of Transmittal. The purpose of this Amendment No. 2 is to
amend Item 3 of the Schedule 14D-9 as set forth below. Terms defined in the
Schedule 14D-9 are used in this Amendment No. 2 with the same meanings as
provided in the Schedule 14D-9.
Item 8. Additional Information to Be Furnished.
The information set forth in Item 3 of the Schedule 14D-9 is hereby amended
and supplemented by adding to the information set forth under subcaption "The
Merger Agreement - Litigation Settlement Agreement" the following paragraph:
On June 4, 1998, plaintiffs in the Stockholder Actions filed a Consolidated
Amended and Supplemental Class Action Complaint (the "Amended Complaint") in
which they named, in addition to the Company and its Board of Directors, Parent
and Purchaser as nominal defendants. In lieu of challenging the Ten Ideas Merger
pursuant to the original complaint filed in February 1998, the Amended Complaint
asserts claims (i) challenging the payment to Mr. Crugnale under the Ten Ideas
Merger Agreement of a termination fee of $1.5 million and up to $750,000 of
documented expenses and the approval of the Litigation Settlement Agreement
which acknowledged such payments and provided that the Company, Parent and
Purchaser would not contest or seek to recover such payments as breaches of the
directors' fiduciary duties and self dealing on the part of Mr. Crugnale and
(ii) seeking to recover legal fees for plaintiffs' counsel on the alleged ground
that the Offer resulted in part through the efforts of plaintiffs and their
counsel. On June 4, 1998, plaintiffs also filed an emergency motion for
expedited discovery and to schedule a hearing to seek a preliminary injunction
to set aside a portion of the total purchase price to be paid by Parent and
Purchaser pursuant to the Offer for the possible payment of plaintiff's legal
fees, pending a determination by the court as to whether an award of counsel
fees to plaintiffs is warranted. On June 4, 1998, the Court heard oral arguments
on plaintiffs' emerging motion and reserved decision.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: June 10, 1998 BERTUCCI'S, INC.
By: /s/Joseph Crugnale
Joseph Crugnale
President
313897-1
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