-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LUQaWyIgGapRunbQ6/3so8+K2HAa/99Zms4pF0fGol2/+ic68efTn8R1RAz6CmuA gkGo2cWaC8yV2W3YZ8V6QA== 0001193125-07-014330.txt : 20070126 0001193125-07-014330.hdr.sgml : 20070126 20070126171230 ACCESSION NUMBER: 0001193125-07-014330 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20070126 DATE AS OF CHANGE: 20070126 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SMITH & WOLLENSKY RESTAURANT GROUP INC CENTRAL INDEX KEY: 0001137047 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 582350980 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-61691 FILM NUMBER: 07557515 BUSINESS ADDRESS: STREET 1: 114 1ST AVENUE CITY: NEW YORK STATE: NY ZIP: 10021 BUSINESS PHONE: 2128382061 MAIL ADDRESS: STREET 1: 114 1ST AVENUE CITY: NEW YORK STATE: NY ZIP: 10021 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: LANDRYS RESTAURANTS INC CENTRAL INDEX KEY: 0000908652 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 760405386 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: TO COME CITY: TO COME STATE: TX ZIP: TO COME BUSINESS PHONE: 7138501010 MAIL ADDRESS: STREET 1: TO COME CITY: TO COME STATE: TX ZIP: TO COME FORMER COMPANY: FORMER CONFORMED NAME: LANDRYS RESTAURANTS INC DATE OF NAME CHANGE: 20020227 FORMER COMPANY: FORMER CONFORMED NAME: LANDRYS SEAFOOD RESTAURANTS INC DATE OF NAME CHANGE: 19930706 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-102)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)

THE SMITH & WOLLENSKY RESTAURANT GROUP, INC.

(Name of Issuer)

 

COMMON STOCK, PAR VALUE $0.01 PER SHARE

(Title of Class of Securities)

 

831758107

(CUSIP Number)

 

Tilman J. Fertitta

President and Chief Executive Officer

Landry’s Restaurants, Inc.

1510 West Loop South

Houston, Texas 77027

(713) 810-1010

With a copies to:

 

Arthur S. Berner, Esq.

Haynes and Boone, LLP

1221 McKinney Street

Suite 2100

Houston, TX 77010

(713) 547-2526

  

Steve Wolosky, Esq.

Olshan Grundman Frome

Rosenzweig & Wolosky LLP

Park Avenue Tower,

65 East 55th Street,

New York, New York

(212) 451-2333

(Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications)

 

January 16, 2007

(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 §§240.13d-1(e), 240.13d-1(f) or 240.13d-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 §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).

 

Page 1 of 8

CUSIP No. 831758107

 

  1  

NAMES OF REPORTING PERSONS:

 

Landry’s Restaurants, Inc.

 

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):

 

76-0405386

    
  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):

(a)  ¨

(b)  x

    
  3  

SEC USE ONLY:

 

    
  4  

SOURCE OF FUNDS (SEE INSTRUCTIONS):

 

BK, WC

    
  5  

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):

 

¨

    
  6  

CITIZENSHIP OR PLACE OF ORGANIZATION:

 

Delaware, USA

    

NUMBER OF  

SHARES  

BENEFICIALLY  

OWNED BY  

EACH  

REPORTING  

PERSON  

WITH  

  

  7    SOLE VOTING POWER:

 

       726,000

 

  8    SHARED VOTING POWER:

 

       0

 

  9    SOLE DISPOSITIVE POWER:

 

       726,000

 

10    SHARED DISPOSITIVE POWER:

 

       0

11  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:

 

726,000

    
12  

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):

 

¨

    
13  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

 

8.5%

    
14  

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):

 

CO

    

 

Page 2 of 8

ITEM 1. SECURITY AND ISSUER.

This statement on Schedule 13D (this “Schedule 13D”) relates to the common stock, par value $0.01 per share, of The Smith & Wollensky Restaurant Group, Inc. (“Smith & Wollensky Common Stock”).

The Smith & Wollensky Restaurant Group, Inc. (the “Issuer”) is a Delaware corporation with its principal executive offices located at 880 Third Avenue, New York, New York, 10022.

 

ITEM 2. IDENTITY AND BACKGROUND.

(a), (b), (c) and (f)

This Schedule 13D is being filed by Landry’s Restaurants, Inc. (“Landry’s”), a Delaware corporation. Landry’s is a national, diversified restaurant hospitality and entertainment company principally engaged in the ownership and operation of full-service, casual dining restaurants, primarily under the names of Rainforest Cafe, Saltgrass Steak House, Landry’s Seafood House, The Crab House, Charley’s Crab and The Chart House. Landry’s principal executive offices are located at 1510 West Loop South, Houston, Texas 77027.

Schedule I attached hereto lists all the members of the Board of Directors of Landry’s and the executive officers of Landry’s.

(d) and (e)

During the last five years, neither Landry’s nor any of its directors and executive officers listed in Schedule I hereto has not been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or 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.

 

ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.

The shares of Smith & Wollensky Common Stock that Landry’s beneficially owns were acquired for $5.3 million through open market purchases using Landry’s working capital and funds borrowed under Landry’s $300 million revolving credit facility with Wachovia Bank, National Association.

 

ITEM 4. PURPOSE OF TRANSACTION.

Landry’s purchased the shares of Smith & Wollensky Common Stock based on its belief that the shares of Smith & Wollensky Common Stock represent an attractive investment opportunity. Depending upon overall market conditions, other investment opportunities available to Landry’s, and the availability of shares of Smith & Wollensky Common Stock at prices that would make the purchase of additional shares desirable, Landry’s may endeavor to increase its position in the Issuer through, among other things, the purchase of shares of Smith & Wollensky Common Stock on the open market, or in private transactions or otherwise, on such terms and at such times as Landry’s may deem advisable.

As set forth in a letter dated January 16, 2007, (the “Proposal Letter”), Landry’s has submitted to the Issuer’s Board of Directors a non-binding proposal to acquire all of the outstanding Smith & Wollensky Common Stock, not owned by Landry’s, for $7.50 per share in cash in a merger transaction (the “Proposal”). A copy of the Proposal Letter is filed herewith as Exhibit 7.01 and is incorporated herein by reference. On January 16, 2007, a press release related to the Proposal was issued by Landry’s. A copy of this press release is filed herewith as Exhibit 7.02 and is incorporated herein by reference.

 

Page 3 of 8

Other than as set forth herein or in the Proposal Letter, Landry’s has no definitive plans or proposals that relate to or would result in any of the events set forth in Items 4(a) through (j) of Schedule 13D. However, if the Issuer’s Board of Directors does not accept the Proposal and a definitive purchase agreement is not executed, Landry’s intends to review its investments in the Issuer on a continuing basis and engage in discussions with management and the Board of Directors of the Issuer or make proposals to the Issuer’s stockholders. Based on various factors including, without limitation, the Issuer’s Board of Directors rejection of the Proposal, Issuer’s financial position and investment strategy, conditions in the securities market and general economic and industry conditions and the price level of the shares of Smith & Wollensky Common Stock, Landry’s may in the future take such actions with respect to its investment in the Issuer as it deems appropriate including, without limitation, increasing its ownership of Smith & Wollensky Common Stock, seeking board representation, making proposals to the Issuer or its stockholders concerning the capitalization and operations of the Issuer, selling some or all of its securities of the Issuer or changing its intention with respect to any and all matters referred to in Item 4.

 

ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.

(a) and (b) The percentage set forth below is based on 8,590,643 shares of Smith & Wollensky Common Stock outstanding as of November 16, 2006, as reported in the Issuer’s quarterly report for the period ended October 2, 2006 on Form 10-Q.

Landry’s beneficially owns 726,000 shares of Smith & Wollensky Common Stock, or 8.5% of the shares outstanding. Landry’s directly owns and has the sole power to vote or direct the vote and the sole power to dispose or direct the disposition of all such shares of Smith & Wollensky Common Stock.

(c) Information concerning transactions in Smith & Wollensky Common Stock effected by Landry’s during the past 60 days is set forth in Schedule II hereto. All such transactions were done in the open market.

(d) Not applicable.

(e) Not applicable.

 

ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

None.

 

ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.

 

Exhibit 7.01.    Proposal Letter to the Board of Directors of The Smith & Wollensky Restaurant Group, Inc. dated January 16, 2007 (incorporated by reference to Exhibit 7.02 hereto).
Exhibit 7.02.    Landry’s Restaurants, Inc. Press Release, dated January 16, 2007.

 

Page 4 of 8

Signatures

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: January 26, 2007

 

Landry’s Restaurants, Inc.
By:   /s/ Tilman J. Fertitta
  Name: Tilman J. Fertitta
  Title: President and Chief Executive Officer

 

Page 5 of 8

Schedule I

Directors and Executive Officers of Landry’s Restaurants, Inc.

(form Landry’s most recent proxy statement)

Directors

 

Name

   

Title

   

Background

Tilman J. Fertitta    President, Chief Executive Officer and Director    Mr. Fertitta has been serving as President and Chief Executive Officer of Landry’s Restaurants, Inc. since 1987 to the present. The principal place of business of Mr. Fertitta is c/o Landry’s Restaurants, Inc., 1510 West Loop South, Houston, Texas 77027. Mr. Fertitta is a citizen of the United States of America.
Steven L. Scheinthal    Executive Vice President and General Counsel, Secretary and Director    Ms. Scheinthal has been serving as Executive Vice President or Vice President of Administration, General Counsel and Secretary of Landry’s Restaurants, Inc. since September 1992 till the present. He has been licensed to practice law in the state of Texas since 1984. The principal place of business of Mr. Scheinthal is c/o Landry’s Restaurants, Inc., 1510 West Loop South, Houston, Texas 77027. Mr. Scheinthal is a citizen of the United States of America.
Michael S. Chadwick    Director    Mr. Chadwick has been engaged in the commercial and investment banking businesses since 1975. In 1994, Mr. Chadwick joined Sanders Morris Harris Group, Inc., an investment banking and financial advisory firm, as Senior Vice President and a Managing Director in the Corporate Finance Group. From 1988 to 1994, Mr. Chadwick was President of Chadwick, Chambers & Associates, Inc., a private merchant investment banking firm in Houston, Texas, which he founded in 1988. The principal place of business of Mr. Chadwick is c/o Sanders Morris Harris Group, Inc. 600 Travis, Suite 3100, Houston, Texas, 77002, Mr. Chadwick is a citizen of the United States of America.
Michael Richmond    Director    Mr. Richmond currently serves as a Director and Vice Chairman of Woodforest National Bank, a Houston area-based bank. Mr. Richmond has been a certified public accountant since the 1970’s. The principal place of business of Mr. Richmond is c/o Woodfest National Bank, 25231 Grogans Mill Road, The Woodlands, Texas 77380. Mr. Richmond is a citizen of the United States of America.
Joe Max Taylor    Director    Mr. Taylor was formerly the chief law enforcement administrator for Galveston County, Texas. The principal place of business of Mr. Taylor is c/o Landry’s Restaurants, Inc., 1510 West Loop South, Houston, Texas 77027. Mr. Taylor is a citizen of the United States of America.
Kenneth Brimmer    Director    Mr. Brimmer is the Chief Executive Officer and Chairman of the Board of STEN Corporation, a publicly-traded, diversified business. He has a degree in accounting and worked as a Certified Public Accountant in the audit division of Arthur Andersen & Co. from 1977 through 1981. The principal place of business of Mr. Brimmer is c/o Sten Corporation, Suite 310 10275 Wayzata Blvd., Minnetonka, MN 55305. Mr. Brimmer is a citizen of the United States of America.

 

Page 6 of 8

Other Executive Officers

 

Richard H. Liem    Senior Vice President of Finance and Chief Financial Officer    Mr. Liem has served as Senior Vice President and Chief Financial Officer of Landry’s Restaurants, Inc. since June 2004. Mr. Liem is a certified public accountant. The principal place of business of Mr. Liem is c/o Landry’s Restaurants, Inc., 1510 West Loop South, Houston, Texas 77027. Mr. Liem is a citizen of the United States of America.
Jeffrey L. Cantwell    Senior Vice President of Development    Mr. Cantwell has served as Senior Vice President of Development, Vice President of Development, and Director of Design and Construction of Landry’s Restaurants, Inc. The principal place of business of Mr. Cantwell is c/o Landry’s Restaurants, Inc., 1510 West Loop South, Houston, Texas 77027. Mr. Cantwell is a citizen of the United States of America.

 

Page 7 of 8

Schedule II

TRANSACTIONS IN SMITH & WOLLENSKY COMMON STOCK EFFECTED BY

LANDRY’S RESTAURANTS, INC. DURING THE PAST 60 DAYS

 

Number of Shares Purchased/Sold    Price Per Share    Date of Purchase/Sale
680,000    $7.3125    1/16/2007
20,000    7.25    1/17/2007
26,000    7.385    1/26/2007

 

Page 8 of 8

EX-7.02 2 dex702.htm PRESS RELEASE Press Release

Exhibit 7.02

LANDRY’S RESTAURANTS, INC. (“LNY/NYSE”)

DELIVERS LETTER TO SMITH & WOLLENSKY

RESTAURANT GROUP OFFERING TO ACQUIRE

COMPANY FOR $7.50 PER SHARE IN CASH

Houston, January 16, 2007 – Landry’s Restaurants, Inc. (NYSE: LNY – News; the “Company”), one of the nation’s largest casual dining and entertainment companies, announced today that it has sent a letter to Smith & Wollensky Restaurant Group, Inc. (Nasdaq: SWRG) offering to acquire Smith & Wollensky Restaurant Group, through an appropriate acquisition entity by merger or otherwise, subject to certain terms and conditions, for $7.50 per share in cash. This offer represents an approximate 50% premium to the market price of $5.03 per share as of the close of business on January 12, 2007. A copy of the letter is attached and included as part of this press release.

“We believe that a combination of the two companies would be in the best interest of the stockholders of both companies,” said Tilman J. Fertitta, Chairman, President and CEO of Landry’s.

The Company’s operations include restaurants primarily under the trade names Landry’s Seafood House, Chart House, Rainforest Café and Saltgrass Steak House, the Signature Group of restaurants such as Vic & Anthony’s and Grotto, and such other businesses as hotels, marinas amusements, retail and the Golden Nugget Hotels and Casinos in Las Vegas and Laughlin, Nevada.

SWRG owns and operates Smith & Wollensky restaurants in 8 different cities, including the Las Vegas strip, downtown Chicago, Miami Beach, uptown Houston, Boston, Philadelphia, Washington, D.C., and Columbus, Ohio. It also operates 6 restaurants in New York City, including Maloney & Porcelli’s, the Post House, Park Avenue Café, Quality Meats, and the original Smith & Wollensky restaurant.

This press release contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, as amended, which are intended to be covered by safe harbors created thereby. Stockholders are cautioned that all forward-looking statements are based largely on the Company’s expectations and involve risks and uncertainties, some of which cannot be predicted or are beyond the Company’s control. A statement containing a projection of revenues, income, earnings per share, same store sales, capital expenditures, or future economic performance are just a few examples of forward-looking statements. Some factors that could realistically cause results to differ materially from those projected in the forward-looking statements include ineffective marketing or promotions, competition, weather, store management turnover, a weak economy, higher interest rates and gas prices, construction at the Golden Nugget properties, negative same store sales, or the Company’s inability to continue its expansion strategy. The Company may not update or revise any forward-looking statements made in this press release.

CONTACT:    Tilman J. Fertitta    Rick H. Liem
   Chairman, President and CEO    Senior Vice President and CFO
   (713) 850-1010    (713) 850-1010
   Dancie Ware, President   
   Dancie Perugini Ware Public Relations   
   (713) 224-9115 Office   
   (832) 647-1006 Cell   

January 16, 2007

Smith & Wollensky Restaurant Group, Inc.

Board of Directors

880 Third Avenue

New York, New York 10022

Gentlemen:

We have had the opportunity over the past few weeks to discuss with Smith & Wollensky Restaurant Group, Inc.’s (“SWRG”) senior management team the interest of Landry’s Restaurants, Inc. (“Landry’s) in acquiring SWRG. Unfortunately, we have been unable to reach an understanding on a transaction which we believe is clearly compelling for SWRG’s stockholders. Accordingly, Landry’s hereby publicly sets forth its willingness, which we communicated to your Board on January 12, 2007, to offer to acquire SWRG, through an appropriate acquisition entity by merger or otherwise, for $7.50 per share in cash (the “Transaction”). It is readily apparent to us, as we believe it will be to your stockholders as well, that a combination of Landry’s and SWRG would be in the best interest of each of our stockholders. This offer represents an attractive approximate 50% premium to the closing market price of $5.03 per share on January 12, 2007.

Landry’s proposes that the Transaction be accomplished through a definitive merger agreement. Our offer is not subject to financing. Our proposal, however, would be conditioned upon satisfactory completion of limited remaining due diligence, obtaining all necessary consents and approvals, including approval of the Boards of Directors of Landry’s and SWRG, waiver of any anti-takeover provisions, any approvals required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, consents, approvals or authorizations required by all state, city or local licensing agencies, the obtaining of consents or approvals if required for certain key leased locations and material contracts and certain other customary conditions, including no material adverse change in SWRG’s business from what has been publicly disclosed. Our offer is also contingent on your Board not obligating SWRG for any new or additional change of control or other severance benefits for senior management, which we view as “self-serving” in nature and designed to benefit senior management at the expense of SWRG’s stockholders.

If we work together cooperatively to finalize a transaction structure and to document the transaction, we believe that all necessary consents and approvals could be obtained and the Transaction could close early in the second quarter of this year. We are also willing to consider a tender offer in a negotiated transaction to expedite stockholder liquidity.

Landry’s stands ready to meet with the Board of Directors and its representatives as soon as possible. Given our ability to consummate the Transaction without a financing contingency, we expect that the Board of Directors would meet with us promptly and seriously consider our offer particularly in light of the fact that our discussions with senior management over the last two (2) months led us to believe that a $7.50 per share offer would be acceptable to your Board. We are therefore disappointed that SWRG has chosen not to constructively engage in discussions with us on a transaction designed to bring equal value to all of SWRG’s stockholders but to simply respond to our January 12, 2007 offer with a letter letting us know that your Board would be in touch after your Board’s Special Committee had an opportunity to consider and evaluate our proposal. We sincerely hope that your Board will reconsider its position and engage in meaningful dialogue without delay so that we can work together to arrive at a negotiated transaction that will benefit SWRG and its stockholders.

If we do not hear from you promptly with an acceptable timeframe for substantive discussions, we will have to assume that SWRG and its Board of Directors do not wish to discuss our proposal further. Landry’s must of course reserve the right to evaluate all its options and take appropriate action with respect to SWRG should we fail to hear a favorable response from the Board of Directors to our proposal. We look forward to promptly engaging in meaningful discussions.

 

Very truly yours,
LANDRY’S RESTAURANTS, INC.
By:   /S/                                                                           .
 
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