SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(Amendment No. 2)
SHELLS SEAFOOD RESTAURANTS, INC.
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(Name of Issuer)
Common Stock, $.01 Par Value Per Share
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(Title of Class of Securities)
822809 10 9
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(CUSIP Number)
Jonathan E. Cole, Esq.
Edwards & Angell
250 Royal Palm Way
Palm Beach, FL 33480
(561) 833-7700
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 20, 1997
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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.
<PAGE>
(1) Name of Reporting Persons: Robert E. Deziel S.S. or I.R.S.
Identification Nos. of Above Persons: ###-##-####
(2) Check the Appropriate Box if a Member of a Group* (a) []
(b) []
(3) SEC Use Only
(4) Source of Funds*
PF
(5) Check if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(d) or 2(e) []
(6) Citizenship or Place of Organization: United States
Number of Shares (7) Sole Voting Power 28,665
Beneficially Owned
by Each Reporting
Person With
(8) Shared Voting Power -0-
(9) Sole Dispositive Power 28,665
(10) Shared Dispositive Power -0-
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: 293,465
(12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares* []
(13) Percent of Class Represented by Amount of Row (11): 7.0%
(14) Type of Reporting Person*: IN
This Amendment No. 2 to the Schedule 13D filed on June 4, 1997 (the
"Original Schedule 13D"), as amended by Amendment No. 1 thereto filed
on June 20, 1997 (as amended, the "Amended Schedule 13D") is filed by
Robert E. Deziel to reflect the fact that Mr. Deziel (1) filed suit
against L&L Foods and related parties in connection with the dispute
surrounding his agreement to purchase 50,000 shares of Shells common
stock from L&L Foods, and the option granted to Mr. Deziel by L&L
Foods covering 479,600 shares of Shells common stock, as reported on
the Amended Schedule 13D, and (2) partially released a lis pendens Mr.
Deziel filed against the 529,600 shares of Shells stock subject to the
May 25 Agreement. Upon partial release of the lis pendens, L&L Foods
sold 264,800 shares of Shells common stock, the proceeds of which are
to be placed in escrow. Capitalized terms used herein without
definition which are defined in the Amended Schedule 13D shall have
the meanings set forth therein.
*See instructions before filling out.
<PAGE>
Item 4. Purpose of Transaction.
(a) Deziel filed a lis pendens against the 529,600 shares of Shells
stock held by L&L Foods in connection with a civil action Mr. Deziel filed
against L&L Foods, Linn Heaton, Lee Heaton and George Heaton in the Circuit
Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida,
styled Robert E. Deziel v. L&L Foods, Inc., a Florida corporation; George
Heaton; Linn Heaton and Lee Heaton, Case No. CL-97-005594-AO (the "Civil
Action"). The Civil Action was filed in connection with a dispute regarding,
among other things, the enforceability of Mr. Deziel's option to purchase
479,600 shares of Shells stock subject to the May 25 Agreement. The parties
attempted to settle the Civil Action by entering into a Compromise and
Settlement Agreement dated August 1, 1997; however, the contingencies set forth
in that agreement were not satisfied and that agreement, by its terms, became
null and void. While the parties continued settlement negotiations, and without
waiving any of their rights in the pending Civil Action, L&L Foods desired to
sell a portion of the Shells shares subject to the May 25 Agreement.
Mr. Deziel agreed to release from the lis pendens up to 129,600 shares pursuant
to the terms of a letter agreement dated August 7, 1997 by and among L&L Foods,
Mr. Deziel, and Bush Ross Gardner Warren & Rudy P.A. The August 7, 1997 letter
agreement was amended by letter dated August 22, 1997 to increase the number of
shares released from the lis pendens to a total of 264,800 shares (although a
typographical error in such letter states a total of 264,400). The August 7 and
August 22, 1997 letters are collectively referred to herein as the "Partial Lis
Pendens Release", and are attached hereto as Exhibits 99.2.1 and 99.2.2,
respectively. L&L Foods sold 264,800 shares of Shells stock pursuant to the
Partial Lis Pendens Release, as described in Item 5. The parties agreed in the
Partial Lis Pendens Release to deposit the proceeds from the sale of the 264,800
shares of Shells stock with Bush Ross Gardner Warren & Rudy, P.A., legal counsel
to L&L Foods, pending a settlement or other resolution of the Civil Action.
Sub-items (b)-(j) are not applicable.
Item 5. Interest in Securities of Shells.
The response of Mr. Deziel to Item 5(a) in the Amended Schedule 13D is
hereby supplemented and modified as follows:
As a result of the sales that L&L Foods made in the open market pursuant to
the Partial Lis Pendens Release, beginning August 12, 1997 and culminating
August 22, 1997, L&L Foods has informed Mr. Deziel that it has reduced its
holdings from 529,600 shares to 264,800 shares. Under the terms of the Partial
Lis Pendens Release, the parties agreed to deposit the proceeds from the sale of
such shares in escrow. Mr. Deziel believes that under the May 25 Agreement, he
is the record and/or beneficial owner of the remaining 264,800 shares of Shells
common stock subject to the lis pendens pursuant to the May 25 Agreement.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of Shells.
As described in Item 4, on August 7, 1997, Mr. Deziel partially released a
lis pendens he filed against the then 529,600 shares of Shells subject to the
May 25 Agreement to permit L&L Foods to sell 129,600 shares of Shells, which L&L
Foods has sold. By letter agreement dated August 22, 1997, Mr. Deziel modified
his partial release of the lis pendens to permit L&L Foods to sell an additional
135,200 shares of Shells, which L&L Foods has also sold. The August 7 and August
22, 1997 letter agreements constituting the Partial Lis Pendens Release are
attached to this Amendment No. 2 to Schedule 13D as Exhibits 99.2.1 and 99.2.2,
respectively. The Partial Lis Pendens Release provides that the proceeds from
the sale of the 264,800 shares of Shells stock are to be deposited with Bush
Ross Gardner Warren & Rudy, P.A., legal counsel to L&L Foods, pending a
settlement or other resolution of the Civil Action. The parties are attempting
to settle the Civil Action.
Item 7. Material to be Filed as Exhibits.
Exhibit 99.2.1 Agreement dated August 7, 1997 by and among L&L Foods, Mr.
Deziel, and Bush Ross Gardner Warren & Rudy, P.A.
Exhibit 99.2.2 Letter to Colette O. de Labry, Esq. from John N. Giordano, Esq.
dated August 22, 1997.
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: August 28, 1997 /s/Robert E. Deziel
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Robert E. Deziel
<PAGE>
31495.01 Exhibit 99.2.1
AGREEMENT
Agreement made this 7th day of August 1997 by and among L&L Foods, Inc., a
Florida corporation having its principal place of business at 215 5th Street,
Suite 108, Palm Beach 33401 ("L&L Foods"); Robert J. Deziel, Esq., an individual
whose principal place of business is located at 239 South County Road, Palm
Beach, Florida 33480 ("Deziel"); and the law firm of Bush Ross Gardner Warren &
Rudy, P.A., whose address is 220 South Franklin Street, Tampa, Florida 33602
(the "Escrow Agent").
BACKGROUND INFORMATION
Deziel filed a lis pendens against the shares of Shells Seafood
Restaurants, Inc. ("Shells Seafood") owned by L&L Foods in connection with the
lawsuit currently pending in the Circuit Court of the Fifteenth Judicial
Circuit, in and for Palm Beach County, Florida (the "Court"), a civil action
styled Robert E. Deziel v. L&L Foods, Inc., a Florida corporation; George
Heaton; Linn Heaton and Lee Heaton, Case No. CL-97-005594-AO. The parties
attempted to settle the litigation by entering into a Compromise and Settlement
Agreement dated August 1, 1997, however the contingencies set forth in that
agreement were not satisfied and that agreement, by its terms, is now null and
void. While the parties are continuing their settlement negotiations, and
without waiving any of their rights in the pending litigation, L&L Foods desires
to sell a portion of the shares of Shells Seafood that it owns and Deziel agrees
to permit the sale of a portion of the shares pursuant to the terms of this
Agreement. Accordingly, the parties agree as follows:
OPERATIVE AGREEMENT
1. Release of Lis Pendens. Deziel hereby partially releases the lis pendens
that was filed on 129,600 shares of the common stock of Shells Seafood (the
"Shares") in order to enable L&L Foods to immediately sell the Shares in
accordance with the terms of this Agreement.
2. Conditions to Release of Lis Pendens. Deziel agrees to release the lis
pendens on the Shares provided that: (a) L&L Foods causes the Shares to be
sold through Oppenheimer & Co. Inc. ("Oppenheimer"); and (b) L&L Foods
irrevocably instructs Oppenheimer to deliver the proceeds from the sale of the
Shares to the Escrow Agent to be held in escrow, pending an agreement by the
parties to this Agreement as to the disposition of such proceeds or pursuant to
an order of the Court, whichever occurs first.
3. Release of Shares. L&L Foods and Deziel direct that the Escrow Agent
deliver a certificate representing the Shares to Oppenheimer with instructions
to deliver any shares represented by that certificate in excess of 129,600 to
the Escrow Agent.
4. Rights and Limitations upon Duty of the Escrow Agent.
The Escrow Agent:
a. shall be entitled to act upon any written certificate, statement,
notice, demand, request, consent, agreement or other instrument, and to
rely upon its due execution, the validity and effectiveness of its
provisions, and the accuracy and completeness of any information therein
contained, as long as the Escrow Agent shall in good faith believe the
instrument to be genuine and to have been signed or presented by an
authorized person;
b. shall be entitled to request and receive from any party hereto such
documents in addition to those provided for herein as the Escrow Agent may
deem necessary to resolve any questions of fact involved in the provisions
hereof;
c. may, at the expense of the remaining parties hereto, consult
independent counsel of its choice in respect to any question relating to
its duties or responsibilities under this Agreement, and shall not be
liable for any action taken or omitted in good faith on advice of such
counsel;
d. shall be under no obligation to advance any funds in connection
with the maintenance or administration of this Agreement, to institute or
defend any action, suit or legal proceeding in connection herewith, or to
take any other action likely to involve the Escrow Agent in expense, unless
first indemnified by the remaining parties hereto, or any of them, as the
case may be, to the Escrow Agent's satisfaction;
e. shall not be bound by any amendment to this Agreement or by any
other agreement between the remaining parties hereto except such amendment
or agreement as shall have been executed by the Escrow Agent;
f. shall have only such duties and responsibilities as are expressly
set forth in this Agreement, together with a general fiduciary duty of
reasonable diligence in the performance of its obligations hereunder;
g. may resign and be discharged from its duties hereunder at any time
by giving notice of such resignation to the remaining parties hereto
specifying a date when such resignation shall take effect (which date shall
be no fewer than 15 days after the date of mailing or other delivery of
such notice). Upon receipt of such notice, a successor escrow agent shall
be appointed by the remaining parties hereto, such successor escrow agent
to become Escrow Agent hereunder upon the resignation date specified in the
subject notice. If the remaining parties are unable to agree upon a
successor escrow agent within 15 days after the date of such notice, the
Escrow Agent shall be entitled to appoint its own successor and shall
continue to act in its fiduciary capacity until its successor accepts the
escrow by written notice delivered to the parties hereto and takes
possession of the escrowed assets. If the Escrow Agent is unable, despite
the use of its best efforts, to obtain the services of a successor, it may
petition a court of competent jurisdiction for an order effecting such an
appointment or providing another remedy, and, pending entry, may deposit
the escrowed assets in the court's registry;
h. shall be indemnified and held harmless by each of the remaining
parties hereto against any and all liabilities incurred by it hereunder,
except for those resulting from the willful misconduct or gross negligence
of the Escrow Agent;
The parties hereto, other than the Escrow Agent may at any time agree to
substitute a new escrow agent by giving notice thereof to the Escrow Agent
then acting.
5. Miscellaneous Provisions.
a. Notices:
All notices or other communications required or permitted to be given
pursuant to this Agreement shall be in writing and shall be made by: (a)
certified mail, return receipt requested; (b) Federal Express, Express
Mail, or similar overnight delivery or courier service; or (c) delivery (in
person or by facsimile or similar telecommunication transmission) to the
party to whom it is to be given, to the address appearing elsewhere in this
Agreement or to such other address as any party hereto may have designated
by written notice forwarded to the other party in accordance with the
provisions of this Section 5(a). Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof,
except for a notice changing a party's address which shall be deemed given
at the time of receipt thereof. Any notice given by other means permitted
by this Section 5(a) shall be deemed given at the time of receipt thereof.
b. Binding Agreement; Non-Assignability:
Each of the provisions and agreements herein contained shall be
binding upon and enure to the benefit of the personal representatives,
heirs, devisees, successors and assigns of the respective parties hereto;
but none of the rights or obligations attaching to any party shall be
assignable.
c. Entire Agreement:
This Agreement, and the other documents referenced herein, constitute
the entire understanding of the parties hereto with respect to the subject
matter hereof, and no amendment, modification or alteration of the terms
hereof shall be binding unless the same be in writing, dated subsequent to
the date hereof and duly approved and executed by each of the parties
hereto.
d. Severability:
Every provision of this Agreement is intended to be severable. If any
term or provision hereof is illegal or invalid for any reason whatever,
such illegality or invalidity shall not affect the validity of the
remainder of this Agreement.
e. Headings:
The headings of this Agreement are inserted for convenience and
identification only, and are in no way intended to describe, interpret,
define or limit the scope, extent or intent hereof.
f. Application of Florida Law:
This Agreement, and the application or interpretation thereof, shall
be governed exclusively by its terms and by the laws of the State of
Florida. Venue for all purposes shall be deemed to lie within Palm Beach
County, Florida.
g. Counterparts:
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
In witness whereof, the parties hereto have executed and delivered
this Agreement the day and year first written above.
/s/ Robert E. Deziel
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Robert E. Deziel
L&L Foods, Inc.
/s/ Lee Heaton /s/ Lee Heaton
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Lee Heaton, Secretary Lee Heaton,
Vice President
Escrow Agent
BUSH ROSS GARDNER WARREN
& RUDY, P.A.
By:/s/ John N. Giordano
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Name:John N. Giordano
Title:Shareholder
<PAGE>
131662.01
Exhibit 99.2.2
BUSH ROSS GARDNER WARREN & RUDY, P.A. ATTORNEYS AT LAW
MAHLON H. BARLOW, III 220 SOUTH FRANKLIN STREET NASREEN M. KADIVAR
DALE K. BOHNER TAMPA, FLORIDA 33602 S. TODD MERRILL
JOHN R. BUSH ALEXANDRA M. RENARD
MINDY L. CARREJA (813) 224-9255 JEREMY P. ROSS
SAMUEL B. DOLCIMASCOLO JOHN F. RUDY, II
PATRICIA LABARTA DOUGLAS EDWARD O. SAVITZ
RICHARD K. FUEYO TELECOPIER (813) 223-9620 ALICIA J. SCHUMACHER
J. STEPHEN GARDNER NEAL A. SIVYER
JOHN N. GIORDANO H. BRADLEY STAGGS
JEFFREY P. GREENBERG RANDY K. STERNS
RICHARD B. HADLOW JEFFREY W. WARREN
PAUL L. HUEY PAUL D. WATSON
DAVID M. JEFFRIES DAVID B. WILLIAMS
August 22, 1997
VIA FACSIMILE (561) 655-8719
Colette O. DeLabry, Esq.
Edwards & Angell
250 Royal Palm Way
Palm Beach, FL 33480
Re: L&L Foods, Inc.
Our File No.: LLFI-0
Dear Colette:
Robert Deziel called and informed me that he had spoken to George Heaton
and that Robert had granted his consent for L&L Foods, Inc. to sell up to an
additional 134,800 shares of the common stock of Shells Seafood Restaurants,
Inc. pursuant to the terms of the August 7, 1997 agreement between Robert
Deziel, L&L Foods, Inc. and our law firm. Would you have Robert, or would you
on Robert's behalf, execute a copy of this letter acknowledging Robert's consent
to increase the number of shares covered by the August 7, 1997 agreement from
129,600 shares to 264,400 shares. Thank you in advance.
Sincerely,
/s/ John N. Giordano
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John N. Giordano
Agreed to and accepted this 22th
day of August 1997
/s/ Gary A. Woodfield, Esq.
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Edwards & Angell
Attorneys for Robert Deziel
cc: Lee Heaton
Harry S. Raleigh, Jr., Esq.
