UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 12)*
Chefs International, Inc.
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(NAME OF ISSUER)
Common Stock, $.01 par value
------------------------------------
(TITLE OF CLASS OF SECURITIES)
163082-6-05
----------------------------
(CUSIP NUMBER)
Steven F. Wasserman, Esq.
Brown Rudnick Berlack Israels LLP
120 West 45th Street
New York, New York 10036
Telephone: (212) 704-0100
------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSONS AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS)
December 17, 2004
------------------------------------
(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 that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 40.13d-1(g), check the
following box. |_|
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss.240.13d-7 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).
SCHEDULE 13D
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CUSIP No. 163082-6-05 Page 2 of 16 Pages
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1 NAME OF REPORTING PERSON: Michael F. Lombardi
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: [___________________]
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] Member of a Group
(b) [ ]
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions) PF
-------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS (2)(d) or (e) N/A
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION USA
-------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER 171,401
BENEFICIALLY OWNED
BY EACH REPORTING
PERSON WITH
--------------------------------------------------------
8 SHARED VOTING POWER 160,668
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER 171,401
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER 160,668
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 332,069*
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) N/A
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.5*%
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions) IN
-------------------------------------------------------------------------------
*INCLUDES (I) 171,401 SHARES OF CHEFS INTERNATIONAL COMMON STOCK ("SHARES")
BENEFICIALLY OWNED BY MICHAEL F. LOMBARDI OVER WHICH HE HAS SOLE VOTING AND
DISPOSITIVE POWER; (II) 49,000 SHARES BENEFICIALLY OWNED BY LOMBARDI & LOMBARDI
P.A. OVER WHICH MICHAEL F. LOMBARDI HAS SHARED VOTING AND DISPOSITIVE POWER; AND
(III) 111,668 SHARES BENEFICIALLY OWNED BY LOMBARDI & LOMBARDI P.A. DEFINED
BENEFIT PENSION PLAN DATED JUNE 28, 1984 OVER WHICH MICHAEL F. LOMBARDI HAS
SHARED VOTING AND DISPOSITIVE POWER. THE OTHER REPORTING PERSONS OWN IN THE
AGGREGATE 2,075,961 ADDITIONAL SHARES. MICHAEL F. LOMBARDI DOES NOT BENEFICIALLY
OWN NOR DOES HE HAVE VOTING OR DISPOSITIVE POWER OVER ANY OF THOSE 2,075,961
ADDITIONAL SHARES. MICHAEL F. LOMBARDI AND THE OTHER REPORTING PERSONS ARE A
"GROUP" FOR PURPOSES OF RULE 13D-5 UNDER THE SECURITIES AND EXCHANGE ACT OF 1934
("EXCHANGE ACT").
SCHEDULE 13D
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CUSIP No. 163082-6-05 Page 3 of 16 Pages
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1 NAME OF REPORTING PERSON: Lombardi & Lombardi, P.A.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: [___________________]
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] Member of a Group
(b) [ ]
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions) OO
-------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS (2)(d) or (e) N/A
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION New Jersey
-------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER 49,000*
BENEFICIALLY OWNED
BY EACH REPORTING
PERSON WITH
--------------------------------------------------------
8 SHARED VOTING POWER 0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER 49,000*
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 49,000*
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) N/A
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.2*%
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions) CO
-------------------------------------------------------------------------------
*LOMBARDI & LOMBARDI, P.A. ("L&L") BENEFICIALLY OWNS 49,000 OR 1.2% OF THE
OUTSTANDING SHARES. MICHAEL F. LOMBARDI AND STEPHEN F. LOMBARDI, AS OFFICERS OF
L&L, HAVE THE POWER TO VOTE OR DISPOSE OF THESE 49,000 SHARES. THE OTHER
REPORTING PERSONS BENEFICIALLY OWN IN THE AGGREGATE 2,359,030 ADDITIONAL SHARES.
L&L DOES NOT BENEFICIALLY OWN NOR DOES IT HAVE VOTING OR DISPOSITIVE POWER OVER
ANY OF THESE 2,359,030 ADDITIONAL SHARES. L&L AND THE OTHER REPORTING PERSONS
ARE A "GROUP" FOR PURPOSES OF RULE 13D-5 UNDER THE EXCHANGE ACT.
SCHEDULE 13D
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CUSIP No. 163082-6-05 Page 4 of 16 Pages
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1 NAME OF REPORTING PERSON: Lombardi & Lombardi, P.A. Defined Benefit
Pension Plan Dated June 28, 1984
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
[___________________]
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] Member of a Group
(b) [ ]
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions) OO
-------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS (2)(d) or (e) N/A
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION New Jersey
-------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER 111,668*
BENEFICIALLY OWNED BY
EACH REPORTING
PERSON WITH
--------------------------------------------------------
8 SHARED VOTING POWER 0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER 111,668*
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 111,668*
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) N/A
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.8*%
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions) EP
-------------------------------------------------------------------------------
*LOMBARDI & LOMBARDI, P.A. DEFINED BENEFIT PLAN DATED JUNE 28, 1984 (THE "PLAN")
BENEFICIALLY OWNS 111,668 OR 2.8% OF THE OUTSTANDING SHARES. MICHAEL F. LOMBARDI
AND STEPHEN L. LOMBARDI, AS TRUSTEES OF THE PLAN, HAVE THE POWER TO VOTE OR TO
DISPOSE OF THESE 111,668 SHARES. THE OTHER REPORTING PERSONS BENEFICIALLY OWN IN
THE AGGREGATE 2,296,362 ADDITIONAL SHARES. THE PLAN DOES NOT BENEFICIALLY OWN
NOR DOES IT HAVE VOTING OR DISPOSITIVE POWER OVER ANY OF THOSE 2,296,362
ADDITIONAL SHARES. THE PLAN AND THE OTHER REPORTING PERSONS ARE A "GROUP" FOR
PURPOSES OF RULE 13D-5 UNDER THE EXCHANGE ACT.
SCHEDULE 13D
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CUSIP No. 163082-6-05 Page 5 of 16 Pages
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1 NAME OF REPORTING PERSON: Robert M. Lombardi
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
[___________________]
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] Member of a Group
(b) [ ]
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions) PF, OO
-------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS (2)(d) or (e) N/A
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION USA
-------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER 1,335,825*
BENEFICIALLY OWNED
BY EACH REPORTING
PERSON WITH
--------------------------------------------------------
8 SHARED VOTING POWER 0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER 1,335,825*
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,335,825*
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) N/A
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 34%
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions) IN
-------------------------------------------------------------------------------
*ROBERT M. LOMBARDI BENEFICIALLY OWNS 1,335,825 SHARES OR 34% OF THE OUTSTANDING
SHARES. HE HAS SOLE VOTING AND DISPOSITIVE POWER OVER THESE 1,335,825 SHARES.
THE OTHER REPORTING PERSONS BENEFICIALLY OWN IN THE AGGREGATE 1,072,205
ADDITIONAL SHARES. ROBERT M. LOMBARDI DOES NOT BENEFICIALLY OWN NOR DOES HE HAVE
VOTING OR DISPOSITIVE POWER OVER ANY OF THOSE 1,072,205 ADDITIONAL SHARES.
ROBERT M. LOMBARDI AND THE OTHER REPORTING PERSONS ARE A "GROUP" FOR PURPOSES OF
RULE 13D-5 UNDER THE EXCHANGE ACT.
SCHEDULE 13D
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CUSIP No. 163082-6-05 Page 6 of 16 Pages
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1 NAME OF REPORTING PERSON: Joseph S. Lombardi
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
[___________________]
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] Member of a Group
(b) [ ]
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions) PF
-------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS (2)(d) or (e) N/A
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION USA
-------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER 598,633*
BENEFICIALLY OWNED
BY EACH REPORTING
PERSON WITH
--------------------------------------------------------
8 SHARED VOTING POWER 0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER 598,633*
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 598,633*
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) N/A
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.2*%
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions) IN
-------------------------------------------------------------------------------
*JOSEPH S. LOMBARDI BENEFICIALLY OWNS 598,633 SHARES OR 15.2% OF THE OUTSTANDING
SHARES. HE HAS SOLE VOTING AND DISPOSITIVE POWER OVER THESE 598,633 SHARES. THE
OTHER REPORTING PERSONS BENEFICIALLY OWN IN THE AGGREGATE 1,809,397 ADDITIONAL
SHARES. JOSEPH S. LOMBARDI DOES NOT BENEFICIALLY OWN NOR DOES HE HAVE VOTING OR
DISPOSITIVE POWER OVER ANY OF THESE 1,809,397 ADDITIONAL SHARES. JOSEPH S.
LOMBARDI AND THE OTHER REPORTING PERSONS ARE A "GROUP" FOR PURPOSES OF RULE
13D-5 UNDER THE EXCHANGE ACT.
SCHEDULE 13D
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CUSIP No. 163082-6-05 Page 7 of 16 Pages
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1 NAME OF REPORTING PERSON: Anthony M. Lombardi
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
[___________________]
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] Member of a Group
(b) [ ]
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions) PF
-------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS (2)(d) or (e) N/A
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION USA
-------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER 111,001*
BENEFICIALLY OWNED
BY EACH REPORTING
PERSON WITH
--------------------------------------------------------
8 SHARED VOTING POWER 0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER 111,001*
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 111,001*
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) N/A
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.8*%
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions) IN
-------------------------------------------------------------------------------
*ANTHONY M. LOMBARDI BENEFICIALLY OWNS 111,001 SHARES OR 2.8% OF THE OUTSTANDING
SHARES. HE HAS SOLE VOTING AND DISPOSITIVE POWER OVER THESE 111,001 SHARES. THE
OTHER REPORTING PERSONS BENEFICIALLY OWN IN THE AGGREGATE 2,297,029 ADDITIONAL
SHARES. ANTHONY M. LOMBARDI DOES NOT BENEFICIALLY OWN NOR DOES HE HAVE VOTING OR
DISPOSITIVE POWER OVER ANY OF THOSE 2,297,029 ADDITIONAL SHARES. ANTHONY M.
LOMBARDI AND THE OTHER REPORTING PERSONS ARE A "GROUP" FOR PURPOSES OF RULE
13D-5 UNDER THE EXCHANGE ACT.
SCHEDULE 13D
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CUSIP No. 163082-6-05 Page 8 of 16 Pages
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1 NAME OF REPORTING PERSON: Stephen F. Lombardi
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
[___________________]
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] Member of a Group
(b) [ ]
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions) PF
-------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS (2)(d) or (e) N/A
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION USA
-------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER 31,001
BENEFICIALLY OWNED
BY EACH REPORTING
PERSON WITH
--------------------------------------------------------
8 SHARED VOTING POWER 160,668
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER 31,001
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER 160,668
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 191,669*
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) N/A
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.9*%
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions) IN
-------------------------------------------------------------------------------
*INCLUDES (I) 31,000 SHARES BENEFICIALLY OWNED BY STEPHEN F. LOMBARDI OVER WHICH
HE HAS SOLE VOTING AND DISPOSITIVE POWER; (II) 49,000 SHARES BENEFICIALLY OWNED
BY LOMBARDI & LOMBARDI P.A. OVER WHICH STEPHEN F. LOMBARDI HAS SHARED VOTING AND
DISPOSITIVE POWER; AND (III) 111,668 SHARES BENEFICIALLY OWNED BY LOMBARDI &
LOMBARDI P.A. DEFINED BENEFIT PENSION PLAN DATED JUNE 28, 1984 OVER WHICH
STEPHEN F. LOMBARDI HAS SHARED VOTING AND DISPOSITIVE POWER. THE OTHER REPORTING
PERSONS OWN IN THE AGGREGATE 2,216,361 ADDITIONAL SHARES. STEPHEN F. LOMBARDI
DOES NOT BENEFICIALLY OWN NOR DOES HE HAVE VOTING OR DISPOSITIVE POWER OVER ANY
OF THOSE 2,216,361 ADDITIONAL SHARES. STEPHEN F. LOMBARDI AND THE OTHER
REPORTING PERSONS ARE A "GROUP" FOR PURPOSES OF RULE 13D-5 UNDER THE EXCHANGE
ACT.
SCHEDULE 13D
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CUSIP No. 163082-6-05 Page 9 of 16 Pages
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1 NAME OF REPORTING PERSON: Lombardi Restaurant Group, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
[___________________]
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] Member of a Group
(b) [ ]
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions) N/A
-------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS (2)(d) or (e) N/A
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION Delaware
-------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER 0
BENEFICIALLY OWNED
BY EACH REPORTING
PERSON WITH
--------------------------------------------------------
8 SHARED VOTING POWER 0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER 0
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0%
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) N/A
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions) CO
-------------------------------------------------------------------------------
SCHEDULE 13D
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CUSIP No. 163082-6-05 Page 10 of 16 Pages
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1 NAME OF REPORTING PERSON: Lee Maschler
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
[___________________]
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] Member of a Group
(b) [ ]
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions) PF
-------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS (2)(d) or (e) N/A
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION
-------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER 98,469
BENEFICIALLY OWNED
BY EACH REPORTING
PERSON WITH
--------------------------------------------------------
8 SHARED VOTING POWER 0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER 98,469
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2.5%
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) N/A
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions) IN
-------------------------------------------------------------------------------
SCHEDULE 13D
---------------------------------- ---------------------------------
CUSIP No. 163082-6-05 Page 11 of 16 Pages
---------------------------------- ---------------------------------
-------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: Matthew H. Maschler
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
[___________________]
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] Member of a Group
(b) [ ]
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions) PF
-------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS (2)(d) or (e) N/A
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION Delaware
-------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER 98,469
BENEFICIALLY OWNED
BY EACH REPORTING
PERSON WITH
--------------------------------------------------------
8 SHARED VOTING POWER 0
--------------------------------------------------------
9 SOLE DISPOSITIVE POWER 98,469
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2.5%
-------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) N/A
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions) IN
-------------------------------------------------------------------------------
ITEM 1. SECURITY AND ISSUER
Michael F. Lombardi, Lombardi & Lombardi, P.A., Lombardi & Lombardi,
P.A. Defined Pension Plan dated June 28, 1984, Robert M. Lombardi, Joseph S.
Lombardi, Anthony M. Lombardi and Stephen F. Lombardi (collectively the
"Lombardi Group") and the Lombardi Restaurant Group, Inc., a newly organized
Delaware corporation, formed by the Lombardi Group to merge with and into Chefs,
("LRG"), hereby amend Amendment No. 11 to its Statement on Schedule 13D dated
June 10, 2004 (the "Amended Statement"), relating to its ownership of common
stock, $.01 par value ("Shares"), of Chefs International, Inc., a Delaware
corporation ("Chefs"). Chefs has its principal offices located at 62 Broadway,
Point Pleasant Beach, New Jersey 08742. In addition, Lee Maschler and Matthew
Maschler ("the Maschler Group") will be joining in this Amendment No. 12. The
Lombardi Group, LRG and the Maschler Group are hereinafter collectively referred
to as the "Reporting Persons."
The purpose of this Amendment No. 12 is to report that on December 17,
2004, the Maschler Group joined the Lombardi Group. On or about November 2002, a
limited liability company which each of Matthew Maschler and Lee Maschler were
members of acquired the shares of common stock of Chefs now held by each of
them. The shares were subsequently distributed by the limited liability company
to the members in January 2004. On November 24, 2004, each of Matthew Maschler
and Lee Maschler purchased 32,823 shares of common stock of Chefs from their
brother, Erik Maschler.
Each Reporting Person is responsible for the completeness and accuracy
of only that information concerning such Reporting Person contained herein, or
in any subsequent amendment, and is not responsible for the completeness or
accuracy of any information concerning the other Reporting Person. Neither
Reporting Person knows or has reason to believe that any information concerning
the other Reporting Person contained herein is inaccurate, and the execution of
any subsequent amendment by each Reporting Person shall constitute a
representation by such Reporting Person that it neither knows nor has reason to
believe that any information concerning the other Reporting Person contained in
such amendment is inaccurate at the time of such execution. Each Reporting
Person hereby disclaims any responsibility for (i) the filing of any reports or
information required under Section 13(d) of the Exchange Act and Regulation
13D-G promulgated thereunder relating to the other Reporting Person or (ii) the
timeliness of any such filing.
Except as set forth herein, there has been no material change in the
facts set forth in the Amended Statement with respect to either Reporting
Person. Items and sub-items not expressly addressed herein are inapplicable with
respect to the Reporting Persons, or the responses to them with respect to the
Reporting Persons either are negative or have not changed from those of the
Amended Statement.
ITEM 2. IDENTITY AND BACKGROUND
There has been no change from Amendment No. 11 except the following:
12
(a) The business address of Lee Maschler is 110 Fieldcrest Avenue,
Raritan Plaza 1, 7th Floor, Edison, New Jersey 08837.
The business address of Matthew Maschler is 110 Fieldcrest Avenue,
Raritan Plaza 1, Edison, New Jersey 08837.
(b) Mr. Lee Maschler is the Chief Executive Officer of Trillium
Trading, LLC, a registered broker-dealer which is located at the address set
forth in Item 2(a). Mr. Matthew Maschler is an attorney at the address set forth
in Item 2(a).
(d) No member of the Maschler Group has, during the last five
years, been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors).
(e) No member of the Maschler Group has, during the last five
years, been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction which resulted in such member of the Maschler Group
being subject to a judgment, decree or a final order enjoining future violations
of, or prohibiting or mandating activities subject to, Federal or State
securities laws or finding any violation with respect to such laws.
(f) Mr. Lee Maschler is a citizen of the United States.
Mr. Matthew Maschler is a citizen of the Unites States
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATIONS
The Reporting Persons estimate that the total amount of funds required
to purchase all of the outstanding shares of Chefs' Common Stock not currently
owned by the Lombardi Group or its affiliates pursuant to the Merger (as defined
below) will be approximately $4,120,000 plus approximately $150,000 in related
fees and expenses.
The Lombardi Group and the Maschler Group will pay these amounts with
personal funds and through anticipated bank borrowings. The Maschler Group will
be responsible for its proportional shares of the expenses necessary to finance
the Merger (as defined below).
ITEM 4. PURPOSE OF TRANSACTION
The purpose of this Amendment No. 12 is to report that on December 17,
2004, the Maschler Group joined the Lombardi Group. On or about November 2002, a
limited liability company which each of Matthew Maschler and Lee Maschler were
members of acquired the shares of common stock of Chefs held by each of them.
The shares were subsequently distributed to the members in January 2004. On
November 24, 2004, each of Matthew Maschler and Lee Maschler purchased 32,823
shares of common stock of Chefs from their brother, Erik Maschler.
As previously reported, the Lombardi Group had submitted a new proposal
to Chefs' Board of Directors, to acquire all of the outstanding shares of Chefs'
Common Stock not currently owned by the Lombardi Group or its affiliates for a
cash purchase price of $3.12 per share. On June 1, 2004, Chefs' Special
Committee of its Board of Directors ("Committee"),
13
appointed to evaluate a proposal made by the Lombardi Group to effect a cash
purchase of the interests of Chefs' minority stockholders, had advised Chefs'
Board of Directors that in the Committee's judgment, the proposed increased
purchase price of $3.12 per share was fair to Chefs' minority stockholders. The
Committee recommended that the Board of Directors accept the proposal (the
"Proposed Transaction").
The Reporting Persons contemplate that the Proposed Transaction will
take the form of a merger pursuant to which LRG, a newly formed Delaware
corporation, would be merged with and into Chefs (the "Merger"), subject to
conditions that are typical for transactions of this type, including, without
limitation, that the holders of not more than 10% of the outstanding shares of
Common Stock exercise their appraisal rights under the Delaware General
Corporation Law. This proposal is not, and the Proposed Transaction will not be,
contingent on any financing conditions.
Depending on the response of the Chefs' Board of Directors to the
Proposed Transaction, and other factors deemed relevant by the Reporting
Persons, the Reporting Persons may formulate other plans and/or make other
proposals, and take such actions with respect to its investment in Chefs,
including any or all of the actions set forth in paragraphs (a) through (j) of
Item 4 of Schedule 13D and any other actions as it may determine to be
appropriate. The Reporting Persons may also modify, amend or withdraw the
Proposed Transaction at any time at its sole discretion.
The purpose of the Merger is for the Reporting Persons to become the
100% owner of Chefs. Assuming the consummation of the proposed Merger, Chefs
will no longer be publicly owned and will thus significantly reduce those legal,
accounting and other costs and expenses associated with being a publicly traded
company. Except for such changes as may be attendant to this planned resource
savings, the Reporting Persons currently intend to cause the business and
operations of Chefs to continue to be conducted substantially as they are
currently conducted. However, the Reporting Persons will continue to evaluate
the business and operations of Chefs after the Merger and will take such actions
as it deems appropriate under the circumstances then existing.
Following completion of the Merger, the Reporting Persons will cause
Chefs to terminate the registration of the Common Stock under the Securities
Exchange Act of 1934.
The Reporting Persons have determined that the following persons will
serve as Board members upon completion of Merger: Michael F. Lombardi, Robert M.
Lombardi, Joseph S. Lombardi, Anthony M. Lombardi , Stephen F. Lombardi and
Matthew Maschler.
NEITHER THE PROPOSED TRANSACTION PROPOSAL NOR THIS SCHEDULE 13D/A
CONSTITUTES AN OFFER TO PURCHASE NOR A SOLICITATION OF AN OFFER TO SELL
SECURITIES OF CHEFS. IF AND WHEN AN OFFER IS MADE FOR THE COMMON STOCK OF CHEFS,
CHEFS' STOCKHOLDERS ARE ADVISED TO READ THE PROXY STATEMENT PURSUANT TO SECTION
14(A) OF THE SECURITIES EXCHANGE ACT OF 1934, FILED BY CHEFS WITH THE
COMMISSION. THE PROXY STATEMENT WOULD CONTAIN IMPORTANT INFORMATION THAT SHOULD
BE READ CAREFULLY.
14
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
There has been no change from Amendment No. 11 except the
following:
Lee Maschler beneficially owns 98,469 shares of common stock ("Shares")
or 2.5% of the outstanding Shares. He has sole power to vote or direct the vote
and sole power to dispose or direct the disposition of said 98,469 Shares. In
addition, Lee Maschler is a stockholder of LRG.
Mattthew Maschler beneficially owns 98,469 Shares or 2.5% of the
outstanding Shares. He has sole power to vote or direct the vote and sole power
to dispose or direct the disposition of said 98,469 Shares. In addition, Matthew
Maschler is a stockholder of LRG.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
There has been no change from Amendment No. 11.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
A. Joint filing agreement, dated as of December 20, 2004 among
Reporting Persons.
B. Contribution Agreement, dated as of December 17, 2004, among
the Lombardi Restaurant Group, Inc. and the signatories
thereto.
15
SIGNATURE
After reasonable inquiry and to the best of each undersigned's
knowledge and belief, the undersigned hereby certify that the information set
forth in this Statement is true, complete and correct.
December 20, 2004 /s/ Michael F. Lombardi
-------------------------------
Michael F. Lombardi
Lombardi & Lombardi, P.A.
By: /s/ Michael F. Lombardi
-------------------------------
Michael F. Lombardi, President
Lombardi & Lombardi, P.A.
Defined Benefit Pension Plan
Dated June 28, 1984
By: /s/ Michael F. Lombardi
-------------------------------
Michael F. Lombardi, Trustee
By: /s/ Robert M. Lombardi
-------------------------------
Robert M. Lombardi
By: /s/ Joseph S. Lombardi
-------------------------------
Joseph S. Lombardi
By: /s/ Anthony M. Lombardi
--------------------------
Anthony M. Lombardi
By: /s/ Stephen F. Lombardi
--------------------------
Stephen F. Lombardi
Lombardi Restaurant Group, Inc.
By: /s/ Michael F. Lombardi
--------------------------------
Name: Michael F. Lombardi
Title: President
By: /s/ Lee Maschler
--------------------------------
Maschler
By: /s/ Matthew Maschler
---------------------------
Matthew Maschler
EXHIBIT A
JOINT FILING AGREEMENT
The undersigned agree that this Amendment No. 12 to Schedule 13D filed
herewith relating to the shares of common stock of Chefs International, Inc. is
filed jointly on behalf of each of the undersigned pursuant to Rule 13d-1(k)
under the Exchange Act.
December 20, 2004 /s/ Michael F. Lombardi
-------------------------------
Michael F. Lombardi
Lombardi & Lombardi, P.A.
By: /s/ Michael F. Lombardi
-------------------------------
Michael F. Lombardi, President
Lombardi & Lombardi, P.A.
Defined Benefit Pension Plan
Dated June 28, 1984
By: /s/ Michael F. Lombardi
------------------------------
Michael F. Lombardi, Trustee
By: /s/ Robert M. Lombardi
-------------------------------
Robert M. Lombardi
By: /s/ Joseph S. Lombardi
-------------------------------
Joseph S. Lombardi
By: /s/ Anthony M. Lombardi
--------------------------
Anthony M. Lombardi
By: /s/ Stephen F. Lombardi
--------------------------
Stephen F. Lombardi
Lombardi Restaurant Group, Inc.
By: /s/ Michael F. Lombardi
-------------------------------
Name: Michael F. Lombardi
Title: President
By: /s/ Lee Maschler
-------------------------------
Lee Maschler
By: /s/ Matthew Maschler
--------------------------
Matthew Maschler
EXHIBIT B
CONTRIBUTION AGREEMENT
This Contribution Agreement (the "Agreement") is entered into as of the
17th day of December, 2004, by and among Lombardi Restaurant Group, Inc., a
Delaware corporation (the "Company"), and the persons set forth on the signature
pages hereto (collectively, the "Transferors" and, each individually, a
"Transferor").
WHEREAS, pursuant to that certain proposed Merger Agreement of even date
herewith (the "Merger Agreement") by and among the Company and Chefs
International, Inc., a Delaware corporation ("Chefs"), the Company will be
merged with and into Chefs (the "Merger"), upon the terms and subject to the
conditions set forth in the Merger Agreement; and
WHEREAS, it is contemplated that under the Merger Agreement each of the
Transferors owns the number of shares (the "Contribution Shares") of common
stock, par value $.01 per share, of Chefs ("Chefs Common Stock") set forth
opposite such Transferors name on Schedule A attached hereto ("Schedule A"); and
WHEREAS, each Transferor desires to make a capital contribution of his
Contribution Shares to the Company in exchange for the same number of shares
(the "Company Shares") of Company common stock, par value $0.01 per share (the
"Company Common Stock"), on the terms and conditions contained herein; and
WHEREAS, each Transferor desires to make (i) an initial capital
contribution to the Company in cash in the amount set forth opposite the name of
such Transferor on Schedule A (the "Initial Cash Contribution"), (ii) a
subsequent capital contribution to be paid to stockholders of Chefs as
consideration in the Merger (the "Merger Cash Contribution") and (iii) such
additional capital contributions in cash as set forth in this Agreement (the
"Additional Cash Contributions", combined with the Initial Cash Contribution and
the Merger Cash Contribution shall be collectively referred to as the "Cash
Contributions") in exchange for no additional shares of Company Common Stock, on
the terms and conditions contained herein; and
WHEREAS, the Company desires to issue the Company Shares to the
Transferors in exchange for the Contribution Shares and the Cash Contributions;
and
WHEREAS, the Company is a transitory entity formed solely for the purposes
of effecting the Merger.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, the parties to
this Agreement, intending to be legally bound, mutually agree as follows:
ARTICLE I
CONTRIBUTION AND ISSUANCE OF SHARES OF COMPANY COMMON STOCK
1.1 TRANSFER OF CONTRIBUTION INTERESTS. Subject to the terms and
conditions, relying on the representations and warranties and in consideration
of the covenants and agreements set forth herein, each Transferor severally
agrees irrevocably to contribute, convey, grant, transfer and deliver on the
date hereof to the Company, and the Company agrees to accept and take
delivery on the date hereof from the Transferors of, the Contribution Shares,
free and clear of any lien, claim or encumbrance of any nature whatsoever,
except for Company's obligations hereunder. The transfer of the Contribution
Shares by each Transferor pursuant to the terms of this Agreement shall
constitute a contribution transaction under which all the benefits and risks
relating to the Contribution Shares shall pass from the Transferors to the
Company and shall not constitute in any way a lending transaction or any other
transaction.
1.2 INITIAL CASH CONTRIBUTION; MERGER CASH CONTRIBUTION; ADDITIONAL CASH
CONTRIBUTIONS. (a) Subject to the terms and conditions, relying on the
representations and warranties and in consideration of the covenants and
agreements set forth herein, each Transferor severally agrees irrevocably to
contribute, convey, grant, transfer and deliver on the date hereof to the
Company, and the Company does hereby agree to accept and take on the date hereof
the Initial Cash Contributions in the amount set forth opposite the name of each
Transferor on Schedule A by wire transfer (or deposit) of immediately available
funds denominated in U.S. dollars to an account established by the Company.
(b) Prior to the consummation of the Merger, the Company shall notify
each Transferor as to the proposed effective date of the Merger and the date by
which each Transferor is required to deposit (the "Deposit Date") the Merger
Cash Contribution set forth opposite such Transferors name on Schedule A (or
such other amount as reasonably instructed by the Company) with the exchange
agent with respect to the Merger. Each Transferor severally agrees irrevocably
to contribute, convey, grant, transfer and deliver on or prior to the Deposit
Date to the exchange agent the appropriate Merger Cash Contribution by wire
transfer (or deposit) of immediately available funds.
(c) In the event that additional cash sums are required by the Company
to pay for expenses incurred in connection with the Merger, or to be paid as
consideration to stockholders of Chefs in the Merger, the Company shall so
notify each Transferor in writing. Such notice shall specify (i) the total
amount of the additional cash required (and the reasons therefore), (ii) such
Transferor's pro rata share of such amount (based upon such Transferor's number
of Contribution Shares relative to the total number of Contribution Shares
contributed to the Company by all Transferors) (the "Applicable Percentage"),
and (iii) the date on which such Subsequent Cash Contribution is required to be
transferred by the Transferor to the Company which date may not be less than
four (4) business date following the date on which such notice is delivered to
the Transferor.
(d) Each Transferor agrees that the failure to comply with the terms and
conditions of this Section 1.2 shall constitute a material breach of this
Agreement. Upon a breach of this Section 1.2, the Company shall so notify such
Transferor who shall have an additional 2 business days within which to cure the
alleged breach of this Agreement. Failure to cure such breach, shall constitute
an event of the default hereunder. Upon the occurrence of an event of default by
a Transferor, the Company may elect to cancel a number of shares of Company
Common Stock issued to such Transferor having a value equal to the damage
incurred by the Company based upon the shares of Company Common Stock having a
value of $3.00 per share.
1.3 CONSIDERATION. Subject to the terms and conditions, relying on the
representations and warranties and in consideration of the covenants and
agreements set forth
2
herein, in consideration of the transfer of the Cash Contributions and the
Contribution Shares to the Company by each Transferor as set forth in Sections
1.1 and 1.2 above, the Company agrees to issue the number of Company Shares to
each Transferor equal to the number of Contribution Shares being contributed by
each Transferor to the Company.
1.4 CLOSING. Subject to the terms set forth herein, the contribution of
the Contribution Shares and the Initial Cash Contributions and the issuance of
the Company Shares hereunder shall occur at a closing (the "Closing") to be held
at the offices of Brown Rudnick Berlack Israels LLP, 120 West 45th Street, New
York, NY 10036, on the date hereof (the "Closing Date"). Upon delivery of the
Cash Contributions and the Contribution Shares in accordance with the terms of
this Agreement, the Company shall deliver a share certificate representing the
Company Shares issuable to each Transferor in accordance with Section 1.3.
1.5 MERGER CONSIDERATION. Each party hereto acknowledges and agrees that
the aggregate consideration payable by Chefs upon consummation of the Merger
pursuant to the Merger Agreement shall be a number of shares of Chefs Common
Stock (the "Merger Shares") equal to the total number of Contribution Shares and
such Merger Shares shall be delivered by Chefs to the Transferors pro rata based
upon the Applicable Percentage.
1.6 BOARD OF DIRECTORS. Immediately following the Closing, the
stockholders of the Company shall elect the following individuals as members of
the Board of Directors (the "Board"):
Michael F. Lombardi;
Robert M. Lombardi;
Joseph S. Lombardi;
Anthony M. Lombardi;
Stephen F. Lombardi; and
Matthew H. Maschler
The Chairman of the Board shall be Robert M. Lombardi. In the event that
Mr. Maschler shall no longer serve as a member of the Board, Mr. Maschler (or
his representative) shall have the right to nominate an individual reasonably
acceptable to the Board as a replacement for Mr. Maschler and the stockholders
shall so elect that individual to the Board of Directors. The Company shall
cause the Merger Agreement to provide that the Board of Directors of the Company
shall become the Board of Directors of Chefs upon the effective time of the
Merger.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company makes the following representations and warranties, which
representations and warranties shall be true, correct and complete in all
respects on the date hereof and shall be true, correct and complete in all
material respects as of the Closing (except for those representations and
warranties that address matters only as of a particular date or only with
respect to a specific period of time, which representations and warranties shall
be true and correct as of such particular date or period of time) to each
Transferor that:
3
2.1 ORGANIZATION AND STANDING. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to carry on its
business as now conducted and as proposed to be conducted.
2.2 AUTHORIZATION. All corporate action on the part of the Company
necessary for the authorization, execution, delivery and performance of this
Agreement by the Company, and for the authorization, issuance and delivery of
the Company Shares being issued under this Agreement has been taken. This
Agreement, when executed and delivered by all parties hereto, shall constitute
the valid and legally binding obligation of the Company, except to the extent
the enforceability thereof may be limited by bankruptcy laws, insolvency laws,
reorganization laws, moratorium laws or other laws affecting creditors' rights
generally or by general equitable principles.
2.3 VALIDITY OF COMPANY COMMON STOCK. The shares of Company Common
Stock, when issued, sold and delivered in accordance with the terms of this
Agreement, shall be duly and validly issued, and fully paid and nonassessable.
2.4 SECURITIES ACT. The issuance of the shares of the Company Common
Stock in accordance with the terms of this Agreement (assuming the accuracy of
the representations and warranties of each Transferor contained in Article III
hereof) is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933Act").
ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE TRANSFERORS
Each Transferor, separately and not jointly, makes the following
representations and warranties, which representations and warranties shall be
true, correct and complete in all respects on the date hereof and shall be true,
correct and complete in all material respects as of the Closing (except for
those representations and warranties that address matters only as of a
particular date or only with respect to a specific period of time, which
representations and warranties shall be true and correct as of such particular
date or period of time) to the Company and each other Transferor that:
3.1 AUTHORIZATION. Such Transferor has full legal capacity and
unrestricted power to execute and deliver this Agreement to which he, she or it
is a party, and any other agreements or instruments executed by it in connection
herewith or therewith and to consummate the transactions contemplated herein or
therein. This Agreement, when executed and delivered by each Transferor, will
constitute its valid and legally binding obligation, except to the extent the
enforceability thereof may be limited by bankruptcy laws, insolvency laws,
reorganization laws, moratorium laws or other laws affecting creditors' rights
generally or by general equitable principles.
3.2 INVESTMENT REPRESENTATIONS.
(a) The shares of Company Common Stock to be received by each
Transferor will be acquired by such Transferor for investment for his, her or
its own account, not as a
4
nominee or agent, and not with a view to the sale or distribution of any part
thereof in violation of applicable federal and state securities laws, and such
Transferor has no current intention of selling, granting participation in or
otherwise distributing the same, in each case, in violation of applicable
federal and state securities laws. By executing this Agreement, such Transferor
further represents that such Transferor does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person, or to any third person, with respect to any of the
shares of Company Common Stock, in each case, in violation of applicable federal
and state securities laws.
(b) Such Transferor understands that the shares of Company Common
Stock have not been registered under the 1933 Act on the basis that the issuance
provided for in this Agreement and the issuance of securities hereunder is
exempt from registration under the 1933 Act pursuant to Section 4(2) thereof and
regulations issued thereunder.
(c) Such Transferor has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of his,
her or its investment. Such Transferor further represents that such Transferor
has had access, during the course of the transactions contemplated hereby and
prior to its purchase of shares of Company Common Stock, to the same kind of
information that is specified in Part I of a registration statement under the
1933 Act and that it has had, during the course of the transactions contemplated
hereby and prior to his, her or its investment of the shares of Company Common
Stock, the opportunity to ask questions of, and receive answers from, the
Company concerning the terms and conditions of the offering and to obtain
additional information (to the extent the Company possessed such information or
could acquire it without unreasonable effort or expense) necessary to verify the
accuracy of any information furnished to it or to which it had access. Such
Transferor understands that no federal or state agency has passed upon this
investment or upon the Company, nor has any such agency made any finding or
determination as to this investment.
(d) Such Transferor understands that the shares of Company Common
Stock may not be sold, transferred or otherwise disposed of without registration
under the 1933 Act or an exemption therefrom, and that in the absence of an
effective registration statement covering the shares of Company Common Stock or
an available exemption from registration under the 1933 Act, the shares of
Company Common Stock must be held indefinitely. Such Transferor must be prepared
to bear the economic risk of this investment for an indefinite period of time.
In particular, such Transferor acknowledges that it is aware that the shares of
Company Common Stock may not be sold pursuant to Rule 144 promulgated under the
1933 Act unless all of the conditions of that Rule are met. Among the current
conditions for use of Rule 144 by certain holders is the availability to the
public of current information about the Company. Such information is not now
available, and the Company has no current plans to make such information
available. Such Transferor represents that, in the absence of an effective
registration statement covering the shares of Company Common Stock, such
Transferor will sell, transfer or otherwise dispose of the shares of Company
Common Stock only in a manner consistent with his, her or its representations
set forth herein.
(e) Such Transferor acknowledges that this investment is not
recommended for Transferors who have any need for a current return on this
investment or who cannot bear the risk of losing their entire investment. Such
Transferor acknowledges that: (i) such Transferor
5
has adequate means of providing for his, her or its current needs and possible
personal contingencies and has no need for liquidity in this investment; (ii)
his, her or its commitment to investments which are not readily marketable is
not disproportionate to his, her or its net worth; and (iii) his, her or its
investment in the shares of Company Common Stock will not cause his, her or its
overall financial commitments to become excessive.
(f) Such Transferor has not retained any finder, broker, agent,
financial advisor, Purchaser Representative (as defined in Rule 501(h) of
Regulation D of the 1933 Act) or other intermediary in connection with the
transactions contemplated by this Agreement and agrees to indemnify and hold
harmless the Company from any liability for any compensation to any such
intermediary retained by such Transferor and the fees and expenses of defending
against such liability or alleged liability
(g) Such Transferor is an "Accredited Transferor" as defined in
Rule 501(a) promulgated under Regulation D of the 1933 Act.
3.3 TITLE TO SHARES. Such Transferor, owns good and marketable title to
such Contribution Shares, free and clear of all liens, pledges, charges,
security interests, restrictions on transfer and other encumbrances. Other than
as contemplated by this Agreement, there is no subscription, option, warrant,
call, right, agreement or commitment relating to the issuance, sale, delivery,
repurchase or transfer by the Transferor (including any right of conversion or
exchange under any outstanding security or other instrument) of such
Contribution Shares. Upon the contribution of such Contribution Shares to the
Company at Closing, and subject to applicable securities laws, such Transferor
will transfer to the Company his, her or its entire legal and beneficial
interest in such Contribution Shares, free and clear of any liens, pledges,
charges, security interests, restrictions on transfer and other encumbrances by
or through such Transferor. Such Transferor is not party to and is not aware of
any voting trusts, proxies or any other agreements or understandings with
respect to the voting of such Contribution Shares.
3.4 NO VIOLATION. Neither the execution and delivery of this Agreement
by such Transferor nor the transactions contemplated herein will (a) result in a
default (or give rise to any right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any agreement, lease or
other instrument or obligation to which such Transferor is a party, except for
such defaults (or rights of termination, cancellation or acceleration) as to
which requisite waivers or consents have been or shall prior to the Closing be
obtained, or (b) violate any order, writ, injunction or decree applicable to
such Transferor or any of such Transferor's assets.
3.5 GOVERNMENT APPROVALS. No consent, approval, license or authorization
of, or designation, declaration or filing with, any court or governmental
authority or regulatory agency is or will be required on the part of such
Transferor in connection with the execution, delivery and performance by such
Transferor of this Agreement and any other agreements or instruments executed by
such Transferor in connection herewith or therewith, except for the following:
(i) those which have already been made or granted, and (ii) post-issuance
filings pursuant to applicable state and federal securities laws (which filings
will be made by the Company following the Closing in accordance with applicable
requirements).
6
3.6 LITIGATION. There are no judicial or administrative actions,
proceedings or investigations pending or, to such Transferor's knowledge,
threatened that question the validity of this Agreement or any action taken or
to be taken by Transferor in connection with this Agreement. There are no
lawsuits, claims, judgments, orders, decrees, administrative or other
proceedings or investigations relating to the ownership of the Contribution
Shares held by such Transferor or otherwise affecting the Contribution Shares
pending, or, to such Transferor's knowledge, threatened against Transferor.
3.7 BROKER. No broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated by
this Agreement, based upon arrangements made by or on behalf of such Transferor.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
4.1 INDEMNIFICATION. (a) In connection with any filing (a "Filing")with
the Securities and Exchange Commission (the "SEC") in which the Company, Chefs
or an Transferor is participating, each such Transferor agrees to severally and
not jointly indemnify, hold harmless and defend, each other Transferor and the
Company against any losses, claims, damages, liabilities, judgments, fines,
penalties, charges, costs, reasonable attorneys' fees, amounts paid in
settlement or expenses, joint or several, (collectively, "ClaimS") incurred in
investigating, preparing or defending any action, claim, suit, inquiry,
proceeding, investigation or appeal taken from the foregoing by or before any
court or governmental, administrative or other regulatory agency, body or the
SEC, whether pending or threatened, whether or not an indemnified party is or
may be a party thereto ("Indemnified Damages"), to which any of them may become
subject insofar as such Claims (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact in a Filing, or the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) any
violation or alleged violation of the Securities Act of 1933 Act, the Securities
Exchange Act of 1934, any other law, including, without limitation, any state
securities law, or any rule or regulation thereunder, or (iii) any material
violation of this Agreement; provided, however, that the indemnity agreement
contained in this Section 4.1(a) shall not apply to amounts paid in settlement
of any Claim if such settlement is effected without the prior written consent of
such Transferor, which consent shall not be unreasonably withheld or delayed.
(b) The indemnity agreements contained herein shall be in addition to
(i) any cause of action or similar right of the indemnified party or indemnified
person against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.
7
ARTICLE V
MISCELLANEOUS
5.1 NO WAIVER; MODIFICATIONS IN WRITING. This Agreement sets forth the
entire understanding of the parties, and supersedes all prior agreements,
arrangements and communications, whether oral or written, with respect to the
subject matter hereof. No waiver of or consent to any departure from any
provision of this Agreement shall be effective unless signed in writing by the
party entitled to the benefit thereof, provided that notice of any such waiver
shall be given to each party hereto as set forth below. Except as otherwise
provided herein, no amendment, modification or termination of any provision of
this Agreement shall be effective unless signed in writing by or on behalf of
the Company and the Transferors entitled to a majority of the shares of Company
Common Stock issuable hereunder. Any amendment, supplement or modification of or
to any provision of this Agreement, any waiver of any provision of this
Agreement, and any consent to any departure by the Company from the terms of any
provision of this Agreement, shall be effective only in the specific instance
and for the specific purpose for which made or given. Except where notice is
specifically required by this Agreement, no notice to or demand on the Company
in any case shall entitle the Company to any other or further notice or demand
in similar or other circumstances.
5.2 NOTICES. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
If to the Company: Lombardi Restaurant Group, Inc.
1862 Oak Tree Road
Edison, NJ 08820
Attention: Michael F. Lombardi, Esq.
Telephone: (732) 906-1500
Facsimile: (732) 906-7625
If to the Transferors: To the address set forth below such
Transferor' name on Signature page
attached hereto
With a copy to: Brown Rudnick Berlack Israels LLP
120 West 45th Street
New York, New York 10036
Attention: Steven F. Wasserman, Esq.
Telephone: (212) 209-4812
Facsimile: (212) 704-0196
All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery or delivery
by telecopy, on the date of such delivery, (b) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
8
5.3 EXECUTION OF COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
but one and the same Agreement.
5.4 BINDING EFFECT; ASSIGNMENT. The rights and obligations of the
Transferors under this Agreement may not be assigned to any other person. Except
as expressly provided in this Agreement, this Agreement shall not be construed
so as to confer any right or benefit upon any person other than the parties to
this Agreement, and their respective successors and assigns. This Agreement
shall be binding upon the Company and each Transferor and its and their
respective successors and assigns.
5.5 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Delaware as to all matters, including but not limited to matters of
validity, construction, effect, performance and remedies.
5.6 SEVERABILITY OF PROVISIONS. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
5.7 EXHIBITS AND HEADINGS. All Exhibits to this Agreement shall be
deemed to be a part of this Agreement. The Article and Section headings used or
contained in this Agreement are for convenience of reference only and shall not
affect the construction of this Agreement.
5.8 INJUNCTIVE RELIEF. Each of the parties to this Agreement hereby
acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that, in the event of a
breach of any material provision of this Agreement, the aggrieved party may
elect to institute and prosecute proceedings to enforce specific performance or
to enjoin the continuing breach of such provision, as well as to obtain damages
for breach of this Agreement. By seeking or obtaining any such relief, the
aggrieved party will not be precluded from seeking or obtaining any other relief
to which it may be entitled.
5.9 ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof or thereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
5.10 SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND WARRANTIES. All
agreements, representations and warranties contained herein or made in writing
by or on behalf of the Company or the Transferors, as the case may be, in
connection with the transactions contemplated by this Agreement shall survive
the execution and delivery of this Agreement and the issuance of the shares of
Company Common Stock.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as an instrument under seal, as of the date first above written.
LOMBARDI RESTAURANT GROUP, INC.
By: /s/ Michael Lombardi
----------------------------
Name: Michael Lombardi
Title: President
TRANSFERORS:
/s/ Michael Lombardi
--------------------------------
Name: Michael Lombardi
Address: 1862 Oak Tree Road
Edison, NJ 08818
/s/ Robert Lombardi
--------------------------------
Name: Robert Lombardi
Address: 10 Parsonage Road
Edison, NJ 08837
/s/ Joseph Lombardi
--------------------------------
Name: Joseph Lombardi
Address: 10 Parsonage Road
Edison, NJ 08837
/s/ Anthony Lombardi
--------------------------------
Name: Anthony Lombardi
Address: 1862 Oak Tree Road
Edison, NJ 08818
/s/ Stephen Lombardi
--------------------------------
Name: Stephen Lombardi
Address: 1862 Oak Tree Road
Edison, NJ 08818
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Lombardi & Lombardi, P.A.
By:/s/ Michael Lombardi
-----------------------------
Name: Michael Lombardi
Address: 1862 Oak Tree Road
Edison, NJ 08818
Lombardi & Lombardi, P.A.
Defined Benefit Pension Plan
By:/s/ Michael Lombardi
-----------------------------
/s/ Lee Maschler
--------------------------------
Name: Lee Maschler
Address: 110 Fieldcrest Avenue
Raritan Plaza 1, 7th Floor
Edison, NJ 08837
/s/ Matthew Maschler
--------------------------------
Name: Matthew Maschler
Address: 110 Fieldcrest Avenue
Raritan Plaza 1, 7th Floor
Edison, NJ 08837
--------------------------------------------------------------------------------
* This amount will equal $3.12 multiplied by the number of shares not held by
the Company multiplied by the Applicable Percentage.
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