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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
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SILVER DINER, INC.
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(Name of Issuer)
COMMON STOCK, PAR VALUE, $.00074
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(Title of Class of Securities)
827655 10 1
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(CUSIP Number)
MS. CATHERINE BRITTON ARNOLD WESTERMAN, ESQUIRE
8706 BROOK ROAD ARENT FOX KINTER PLOTKIN & KAHN, PLLC
MCLEAN, VIRGINIA 22102 1050 CONNECTICUT AVENUE, N.W.
(703)-442-8430 WASHINGTON, D.C. 20036-5339
(202)-857-6243
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
DECEMBER 15, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. [_]
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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POTENTIAL PERSONS WHO ARE TO RESPOND TO THE COLLECTION OF INFORMATION CONTAINED
IN THIS FORM ARE NOT REQUIRED TO RESPOND UNLESS THE FORM DISPLAYS A CURRENTLY
VALID OMB CONTROL NUMBER.
CUSIP No. 827655 10 1
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1. Names of Reporting Person.
I.R.S. Identification No. of above person (entities only).
Catherine Britton
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [_]
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3. SEC Use Only
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4. Source of Funds (See Instructions) BK
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5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d)
or 2(e)
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6. Citizenship or Place of Organization United States of America
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Number of 7. Sole Voting Power 2,365,498
Shares ------------------------------------------
Beneficially 8. Shared Voting Power 0
Owned by ------------------------------------------
Each Reporting 9. Sole Dispositive Power 2,365,498
Person ------------------------------------------
With 10. Shared Dispositive Power 0
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11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,653,865*
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
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13. Percent of Class Represented by Amount in Row (11) 38.90%
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14. Type of Reporting Person (See Instructions)
IN
* Pursuant to Rule 13d-5 of the Securities Exchange Act of 1934, the amount of
Common Shares reported in Item 11 includes the beneficial ownership of the
Common Shares owned by the Group referred to in Item 4 of this
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Amendment No.1. Ms. Britton disclaims beneficial ownership of 2,288,367 Common
Shares reported in Item 11 above. See-- Item 4 of this Amendment No. 1.
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This Amendment No. 1 to Schedule 13D is filed by Catherine Britton with
respect to the common stock, par value $.00074 per share ("Common Shares"), of
Silver Diner, Inc., a Delaware corporation (the "Issuer"), and amends the
Schedule 13D filed by Ms. Britton on April 15, 1997 (the "Statement"). All
capitalized terms used and not defined herein shall have the meanings
ascribed to them in the Statement.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
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Item 3 is hereby deleted in its entirety and is amended as follows:
On April 7, 1997, Ms. Britton's husband, Robert T. Giaimo, who is Chairman
of the Board, a director and President of the Issuer, transferred to Ms. Britton
for estate planning purposes, for no consideration, 1,611,154 Common Shares.
Concurrent with the transfer of the Common Shares to Ms. Britton, Mr. Giaimo
assigned to Ms. Britton, and Ms. Britton agreed to be bound by a stock option
agreement between Mr. Giaimo and Clinton A. Clark ("Stock Option Agreement"),
pursuant to which Mr. Giaimo granted an option to Mr. Clark to acquire 20,003
Common Shares exercisable at $3.60 per share at any time prior to April 4, 2005.
A copy of the Stock Option Agreement was filed as Exhibit 1 to the Statement and
is incorporated herein by this reference.
On December 15, 1998, Ms. Britton purchased 750,000 Common Shares at $0.77
per share (the "Britton Shares"). On December 16, 1998, Ms. Britton acquired
4,344 Common Shares, reflecting her proportionate share of 15,000 Common Shares
acquired by the Group referred to in Item 4 of this Amendment No. 1 for $0.6875
per share. Ms. Britton purchased these Common Shares with funds made available
from the parents of Mr. Giaimo. No decision has been made as to whether these
funds will be treated as a loan or as a gift.
ITEM 4. PURPOSE OF TRANSACTION
----------------------
Item 4 is hereby deleted in its entirety and is amended as follows:
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Mr. Giaimo and his wife, believing that the Common Shares represented an
investment opportunity, identified blocks of Common Shares held by several
institutions. Accordingly, Mr. Giaimo contacted these institutions to ascertain
whether the blocks he identified were available for sale. Mr. Giaimo realized
that neither he nor his wife had sufficient funds to purchase all of the Common
Shares held by such institutions if they became available for sale. Thus, in the
early part of December, 1998, Mr. Giaimo asked several directors, officers and
consultants of the Issuer if they were potentially interested in participating
in the acquisition to the extent additional funds were needed.
Although one institution was not interested in selling, Mr. Giaimo
continued his discussions with another institution, and on December 15, 1998,
this institution agreed to sell the Common Shares which were purchased by Ms.
Britton.
At approximately the same time, Mr. Giaimo asked Charles Steiner, a
director of the Issuer, Ype Von Hengst, a director and Vice President of the
Issuer, Patrick Meskell, an officer of the Issuer, Timothy Cusick, an officer of
the Issuer, William Roulan-Miller, a principal of Janey, Montgomery, Scott and a
consultant to the Issuer, George Mavrikes, a business advisor to the Issuer and
Robert Pincus, the President and Chief Executive Officer of Franklin National
Bank, a lender to the Issuer (the "Group") to join with him and his wife to
acquire Common Shares either in blocks or in over-the-counter open market
purchases at prevailing prices on an ongoing basis. Although the Group was
formed at the behest of Mr. Giaimo, he does not intend to personally participate
in the acquisitions made by the Group.
The members of the Group agreed to invest collectively $552,500 (the "Group
Investment") to purchase Common Shares. The amount each member of the Group has
agreed to invest is as follows: the Steiner Family Partnership (the entity Mr.
Steiner has elected to purchase the Common Shares)-- $187,500; Catherine
Britton-- $160,000; Patrick Meskell-- $60,000; Robert Pincus-- $50,000; George
Mavrikes-- $25,000; Timothy Cusick-- $25,000; Ype Von Hengst-- 25,000; Michael
Collier-- $10,000; and William Roulan-Miller-- 10,000. Notwithstanding the
foregoing, each Group member reserves the right to purchase additional Common
Shares of the Issuer at any time in private or market transactions depending on
market conditions and such Group member's evaluation of the Issuer's business
and financial condition. Each Group member will use his or her personal funds
to purchase Common Shares, except for Mr. Steiner who will use funds of the
Steiner Family Partnership to purchase Common Shares, Mr. Cusick who will borrow
the amount he intends to invest from a national bank and Mr. Hengst who will
borrow half of the funds he
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plans to invest from Mr. Giaimo and the balance from a national bank. All Common
Shares purchased by the Group will be allocated to each Group member in
proportion to such Group member's investment.
The Group intends to acquire Common Shares from time to time at prevailing
rates through open market transactions or block purchases on an ongoing basis,
depending on market conditions and subject to compliance with all applicable
securities laws and regulations. No time limit has been established for the
completion of the Group's acquisition of the Common Shares. The Group may
discontinue its acquisition strategy at any time. When the Group Investment has
been exhausted, the Group's existence will terminate immediately.
The formation of the Group is the event which required Ms. Britton to file
this Amendment No.1. Rule 13d-5 of the Securities Exchange Act of 1934 (the
"Act") provides, in pertinent part, "When two or more persons agree to act
together for the purpose of acquiring, holding, voting or disposing of equity
securities of an issuer, the group formed thereby shall be deemed to have
acquired beneficial ownership, for purposes of Sections 13(d) and 13(g) of the
Act, as of the date of such agreement, of all equity securities of that issuer
beneficially owned by any such persons." The Group was formed for the purpose of
pooling funds to enable the members of the Group to acquire additional Common
Shares through open market transactions or block purchases. Each member of the
Group retains the sole and absolute power to vote or dispose of any Common
Shares acquired or held by such Group member, and there are no arrangements,
agreements or understandings among the members of the Group with respect to the
voting or disposition of the Common Shares acquired by any member of the Group,
the business and operations of the Issuer or the control of the Issuer. Any
Common Shares purchased by a Group member will be held in the account of such
Group member. Accordingly, each member of the Group disclaims beneficial
ownership of the Common Shares owned by the other members of the Group, and the
filing of this Amendment No. 1 should not be construed as an admission that Ms.
Britton is the beneficial owner of the Common Shares owned by the other members
of the Group.
Except as set forth in this Item 4, and except for plans or proposals of
the Issuer in which Ms. Britton may participate in her capacity as a director of
the Issuer, neither Ms. Britton nor, to her knowledge, any other member of the
Group have any plans or proposals which relate to or would result in:
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(a) The acquisition by any person of additional securities of the Issuer,
or the disposition of securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation involving the Issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Issuer or of
any of its subsidiaries;
(d) Any change in the present Board or management of the Issuer, including
any plans or proposals to change the number or term of directors or to fill any
existing vacancies on the Board;
(e) Any material change in the present capitalization or dividend policy of
the Issuer;
(f) Any other material change in the Issuer's business or corporate
structure;
(g) Changes in the Issuer's charter or bylaws or other actions which may
impede the acquisition of control of the Issuer by any person;
(h) Causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934, as amended; or
(j) Any action similar to any of those enumerated above.
As a result of the acquisitions described herein, the Common Shares which
each member owns beneficially and of record is as follows:
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<TABLE>
<CAPTION>
GROUP MEMBER COMMON SHARES (1)
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<S> <C>
Robert Giaimo 420,000 (2)(10)
Catherine Britton 2,376,498 (3)(10)
Charles Steiner 480,557 (4)(10)
Robert Pincus 1,357
William Roulan-Miller 271
George Mavrikes 34,015 (5)(10)
Michael Collier 32,463 (6)(10)
Patrick Meskell 81,636 (7)(10)
Timothy Cusick 45,915 (8)(10)
Ype Von Hengst 228,560 (9)(10)
</TABLE>
(1) Since there are no arrangements, agreements or understandings among the
members of the Group with respect to the voting or disposition of the
Common Shares acquired by any member of the Group, the business and
operations of the Issuer or the control of the Issuer, the number of Common
Shares set forth opposite the name of each Group member in the above table
does not include the Common Shares owned by each of the other members of
the Group.
(2) The 420,000 Common Shares owned by Mr. Giaimo beneficially and of
record include the following: (a) 300,000 Common Shares directly owned by
Mr. Giaimo; and (b) 120,000 Common Shares subject to options granted to Mr.
Giaimo under the Stock Option Plan. The 420,000 Common Shares owned by Mr.
Giaimo beneficially and of record do not include: (a) 478,334 Common
Shares owned of record by four persons who were principals of Food Trends
Acquisition Corporation ("FTAC") prior to the merger of FTAC with and into
Silver Diner Development, Inc. ("SDDI") (the "Merger"), which are subject
to a voting agreement ("FTAC Affiliate Voting and Lockup Agreement"); (b)
102,135 Common Shares which are subject to a voting agreement and are owned
of record by GKN Securities Corp. and/or
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certain assignees thereof ("GKN Voting and Lockup Agreement"); and (c)
555,005 Common Shares owned of record by stockholders of the Issuer that
are subject to voting agreements. The voting rights described in clause (b)
of the preceding sentence have been granted to Mr. Giaimo pursuant to the
GKN Voting and Lockup Agreement provides that Mr. Giaimo has an irrevocable
right to vote such Common Shares with respect to all matters in which
stockholder approval is required under the Delaware General Corporation
Law, including, without limitation, voting such stockholders' Common Shares
in favor of nominees to the Board of Directors of the Issuer and for or
against any an all matters that may come before the Issuer's stockholders
for a vote. The proxy continues until the earlier of three years after the
consummation of the Merger or the sale of the Common Shares by such
stockholders to a non-affiliate in a bona fide transaction for value. The
voting rights described in clause (c) above have been granted to Mr. Giaimo
pursuant to the voting agreements that grant to Mr. Giaimo an irrevocable
right to vote with respect to all matters in which stockholder approval is
required under the Delaware General Corporation Law, including, without
limitation, voting such stockholders' Common Shares in favor of nominees to
the Board of Directors of the Issuer and for or against any and all matters
that may come before the Issuer's stockholders for a vote. The appointment
survives until the earliest of five years after the consummation of the
Merger, the public offering of Common Shares by the Issuer from which the
Issuer realizes $15 million or more, or the death of the stockholder. The
420,000 Common Shares owned beneficially and of record by Mr. Giaimo do not
include any Common Shares owned by Ms. Catherine Britton, Mr. Giaimo's
spouse, or Common Shares issuable upon the exercise of certain outstanding
stock option agreements ("Options") that will be subject to the terms of
Voting and Lockup Agreements between the holders of such Options and Mr.
Giaimo. Mr. Giaimo disclaims beneficial ownership of Common Shares
beneficially owned by Catherine Britton.
(3) Includes options for 11,000 Common Shares under the 1996 Non-Employee
Director Stock Option Plan. Also includes 20,003 Common Shares subject to
options granted to Mr. Clinton A. Clark by Mr. Robert T. Giaimo pursuant to
a stock option agreement between such parties, which agreement was assigned
by Mr. Giaimo to, and assumed by, Ms. Britton. Does not include 420,000
Common Shares beneficially owned by Mr. Giaimo, Ms. Britton's spouse, or
the 1,135,474 Common Shares Mr. Giaimo has the power under the voting
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agreements discussed in Note (2) above. Ms. Britton disclaims beneficial
ownership of the Common Shares beneficially owned by Mr. Giaimo.
(4) Includes 409,466 Common Shares held of record by the Steiner Family
Partnership (the "Partnership"). Charles Steiner, a director of the Issuer,
owns a 25% interest in and is the managing partner of the Partnership. In
addition to the Common Shares Mr. Steiner owns beneficially through his
equity interest in the Partnership, Mr. Steiner also owns beneficially (a)
50,000 Common Shares held by the Branch Group, Inc. 401(k) Profit Sharing
Plan (Mr. Steiner is sole trustee of the Branch Group, Inc. 401(k) Profit
Sharing Plan and one of a number of beneficiaries thereof, holding an
approximate 7% interest in the plan); (b) 5,000 Common Shares subject to
options granted to Mr. Steiner under the 1991 Stock Option Plan; and (c)
11,000 Common Shares subject to options granted to Mr. Steiner under the
1996 Non-Employee Directors Stock Option Plan. By virtue of his position in
the Partnership, Mr. Steiner may be deemed to own beneficially all of the
Common Shares held of record by Partnership. Except to the extent of his
25% interest in the Partnership, Mr. Steiner disclaims beneficial ownership
of the Common Shares held of record by the Partnership.
(5) Includes options to purchase 33,336 Common Shares under the Second Amended
and Restated 1991 Stock Option Plan.
(6) Includes (a) options to purchase 26,069 Common Shares under the Second
Amended and Restated 1991 Stock Option Plan; and (b) options to purchase
6,123 Common Shares under the 1991 Consultant Stock Option Plan.
(7) Includes: (a) options to purchase 20,003 Common Shares under the Earned
Ownership Plan; (b) options to purchase 30,004 Common Shares under the 1991
Stock Option Plan; and (c) options to purchase 30,000 Common Shares under
the Stock Option Plan.
(8) Includes: (a) options to purchase 11,667 Common Shares under the 1991 Stock
Option Plan; (b) options to purchase 3,569 Common Shares under the Earned
Ownership Plan; and (c) options to purchase 30,000 Common Shares under the
Stock Option Plan.
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(9) Includes options to purchase 45,000 Common Shares under the Stock Option
Plan. 182,881 Common Shares owned by Mr. Hengst are subject to the terms of
a voting agreement described in clause (e) of Note 2.
(10) Unless otherwise stated in Notes 2 through 9 above, all references to
options are to options exercisable currently and within 60 days of
December 17, 1998.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
------------------------------------
Item 5 is hereby deleted in its entirety and is amended as follows:
The information contained in Item 4 of this Amendment No. 1 with respect to
the Common Shares beneficially owned by Ms. Britton is incorporated herein by
reference.
Ms. Britton has the sole power to vote and dispose of 2,365,498 Common
Shares, representing approximately 20.42% of the outstanding Common Shares,
based on the number of Common Shares outstanding as reported in the Registrant's
Form 10-Q dated November 18, 1998. Because there are no arrangements, agreements
or understandings among the members of the Group with respect to the voting or
disposition of the Common Shares acquired by any member of the Group, the
business and operations of the Issuer or the control of the Issuer, the number
of shares beneficially owned by Ms. Britton does not include the Common Shares
owned by the other members of the Group.
Other than as described in this Amendment No. 1, no transactions in Common
Shares were effected by Ms. Britton during the sixty days prior to the date of
this Amendment No.1.
ITEM 6. CONTRACTS, AGREEMENTS, UNDERSTANDINGS AND RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
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Item 6 is hereby deleted in is entirety and amended as follows:
The information contained in Item 3 of this Amendment No. 1 with respect to
the Stock Option Agreement is incorporated herein by reference.
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The information contained in Item 4 of this Amendment No. 1 pertaining to
any arrangements, agreements or understandings among the members of the Group is
incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
--------------------------------
NONE
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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 Amendment No. 1 is true, complete
and correct.
Date: December 17, 1998 /s/ Catherine Britton
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Catherine Britton
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