Securities and Exchange Commission
Washington, D.C. 20549
Form 8-A/A
Amendment No. 2
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Uni-Marts Inc.
(Exact name of registrant as specified in its charter)
Delaware 25-1311379
(State of incorporation or organization) (I.R.S. Employer
Identification No.
477 East Beaver Avenue, State College, PA 16801-5690
(Address of principal executive offices) (Zip Code)
This form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c). [ X ]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Common Stock, par value $.10 American Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
Item 1. Description of Registrant's Securities to be Registered.
The following description amends and restates in its entirety the
"Description of Registrant's Securities to be Registered" contained in the
Company's Registration Statement on Form 8-A, as amended on March 25, 1999 (File
No. 1-11556), pertaining to the Company's Common Stock, par value $0.10.
General
The Company's authorized capital stock consists of 15,000,000 shares of
Common Stock, $0.10 par value per share. As of February 8, 2002, there were
7,397,850 shares of Common Stock outstanding, including 310,897 shares held in
the treasury.
The following summary description of the Common Stock does not purport
to be complete and is subject to, and qualified in its entirety by, the
provisions of the Company's Amended and Restated Certificate of Incorporation
(the "Certificate"), the Company's Amended and Restated By-laws (the "By-laws")
and by provisions of applicable law. Copies of the Certificate and By-laws have
been filed with the Securities and Exchange Commission.
Holders of Common Stock are entitled to one vote per share, to receive
dividends on a ratable basis when and if declared by the Board of Directors (to
the extent funds are legally available to pay such dividends) and to share
ratably in the assets of the Company legally available for distribution to its
stockholders in the event of liquidation. Holders of Common Stock have no
preemptive, subscription, redemption or conversion rights. All outstanding
shares of Common Stock are duly authorized, fully paid and nonassessable.
Holders of Common Stock do not have cumulative voting rights. The holders of a
majority of the shares of Common Stock entitled to vote in any election of
directors can elect all the directors standing for election and may decide any
question brought before a duly convened meeting of stockholders of the Company,
or may consent in writing to any action required to be taken at any such meeting
of stockholders or any action which may be taken without a meeting, unless the
question is one upon which applicable law requires a different vote.
Stockholder Rights Plan
On February 6, 2002, the Board of Directors of the Company declared a
dividend distribution of one right (a "Right") for each outstanding share of
Common Stock payable to stockholders of record at the close of business on
February 19, 2002 (the "Record Date"). One Right will also be issued to the
holder of each share of Common Stock that becomes outstanding after the Record
Date and before the earliest of (i) the Distribution Date, as defined below,
(ii) the redemption of the Rights, and (iii) the expiration of the Rights.
Except as set forth below, and subject to adjustment as provided in the Rights
Agreement (as defined below), each Right entitles the registered holder to
purchase from the Company two-thirds of a share of Common Stock (a "Fractional
Share"), for an exercise price of $10.67 per Right (the "Purchase Price"). Under
certain circumstances, as set forth in the Rights Agreement, the Company may
substitute other
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securities or property for the Fractional Share otherwise obtainable upon
exercise of a Right. The description and terms of the Rights are set forth in
the Rights Agreement (the "Rights Agreement") dated as of February 6, 2002
between the Company and Mellon Investor Services LLC, as Rights Agent (the
"Rights Agent").
The Rights are not exercisable until the "Distribution Date" which is
the earlier of (i) the date which is 10 days (or such later date as the Board of
Directors may determine) after the commencement of, or first public announcement
of an intention to make, a tender or exchange offer by any person or entity
(each a "Person"), other than the Company and certain related entities, if, upon
the consummation of such offer a Person or group of affiliated or associated
Persons would become an Acquiring Person (defined below) or (ii) the date of the
first public announcement that a Person or group of affiliated or associated
Persons has acquired, or obtained the right to acquire, otherwise than pursuant
to a Permitted Offer (defined below), beneficial ownership of 15% or more of the
outstanding shares of Common Stock, in each case subject to certain
grandfathering provisions. A Person or group whose acquisition of shares of
Common Stock causes a Distribution Date to occur pursuant to the foregoing
clause (ii) is an "Acquiring Person." The grandfathering provisions are
applicable to Henry D. Sahakian, the Company's founder and Chairman, Daniel D.
Sahakian, a director of the Company, and certain persons related to or
affiliated with them (collectively, the "Grandfathered Persons"), except to the
extent that the Grandfathered Persons acquire beneficial ownership of Common
Stock (other than as a result of the acquisition of Common Stock or the right to
acquire shares of Common Stock, directly or indirectly, from the Company) that
would increase the percentage beneficial ownership of the outstanding Common
Stock of the Company held by the Grandfathered Persons, as compared to the
percentage beneficial ownership of the Grandfathered Persons on the date of the
Rights Agreement, by more than 1% of the outstanding Common Stock of the
Company.
Until the Distribution Date (or earlier redemption or expiration of the
Rights) (i) the Rights will be evidenced by the Common Stock certificates and
not by separate certificates and will be transferred with and only with such
Common Stock certificates (except in connection with the redemption of the
Rights), (ii) new Common Stock certificates issued after the Record Date will
contain a notation referring to the Rights associated with such shares of Common
Stock, incorporating the Rights Agreement by reference and (iii) the surrender
for transfer of any certificates for Common Stock outstanding will also
constitute the transfer of the Rights associated with the Common Stock
represented by such certificates. As soon as practicable after the Distribution
Date, separate Right Certificates will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date and,
thereafter, the separate Right Certificates alone will represent the Rights.
The Rights will expire at the close of business on January 31, 2012,
unless earlier redeemed by the Company as described below.
In the event that any Person becomes an Acquiring Person (otherwise
than pursuant to a Permitted Offer), the Rights will be modified automatically
so that each holder of a Right will thereafter have, in lieu of the right to
purchase a Unit, the right (the "Flip-In Right") to receive upon exercise of the
Right the number of shares of Common Stock which, immediately before such
Acquiring Person became an Acquiring Person, had a market value equal to twice
the amount of the exercise price of the Right. Notwithstanding the foregoing,
after such Person shall have become an Acquiring Person, all Rights that are, or
under certain circumstances specified in the Rights Agreement were, beneficially
owned by any Acquiring Person or any affiliate or associate thereof will be null
and void, and any holder of such Rights will have no right to exercise such
Rights. A "Permitted Offer" is a tender or exchange offer which is for all
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outstanding shares of Common Stock at a price and on terms which the Board of
Directors determines to be adequate and otherwise in the best interests of the
Company and its stockholders (other than such Acquiring Person, its affiliates
and associates) taking into account all factors that the directors may deem
relevant thereto.
In the event that, at any time after a Person or group has become an
Acquiring Person, (i) the Company is acquired in a merger or other business
combination in which the holders of all of the outstanding shares of Common
Stock immediately prior to the consummation of the transaction are not the
holders of all of the surviving corporation's voting power or (ii) more than 50%
of the Company's assets or earning power is sold, leased, exchanged, mortgaged,
pledged or otherwise transferred or disposed of (in one transaction or a series
of related transactions), in any such case with or to an Acquiring Person or any
affiliate or associate thereof or any other Person in which such Acquiring
Person, affiliate or associate has an interest or any Person acting on behalf of
or in concert with such Acquiring Person (or, if in such transaction all holders
of shares of Common Stock are not treated alike, any other Person), then each
holder of a Right (except Rights which previously have become null and void as
set forth above) shall thereafter have the right (the "Flip-Over Right") to
receive, upon exercise of the Right, shares of common stock of the acquiring
company having a value equal to twice the amount of the exercise price of the
Right. Each such holder of a Right will continue to have a Flip-Over Right
whether or not such holder exercises or surrenders the Flip-In Right, and such
holder will have a successive Flip-Over Right on each occurrence of a
transaction specified in the first sentence of this paragraph.
At any time before a Person or group becomes an Acquiring Person, the
Company may redeem the Rights in whole, but not in part, at a price of $.001 per
Right (the "Redemption Price"), subject to adjustment. Immediately upon the
action of the Board of Directors ordering redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price. Notice of redemption will be given by
mail to each holder of Rights at such holder's last address on the registry
books for the Rights, or, at the Company's option, by issuing a press release
and mailing payment of the redemption price to the registered holders of the
Rights.
The Purchase Price payable, and the number and kind of securities or
property issuable, upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution in the event of certain changes in the Common
Stock or distributions of such stock or other events which would otherwise
diminish the benefits intended to be afforded by the Rights. With certain
exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments amount to at least 1% of the Purchase Price.
No fractional Rights or shares of Common Stock will be issued (other
than fractions of a share of Common Stock which are one one-third of a share
or an integral multiple of one one-third of a share) and, in lieu thereof, a
payment in cash will be made based on the market price of the Rights or Common
Stock, as the case may be, on the last trading date prior to the date of
exercise of the Rights involved or the Company may issue scrip, warrants or
depositary receipts.
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Prior to the Distribution Date, the Board of Directors may, without the
approval of any holder of Rights, supplement or amend any provision of the
Rights Agreement other than to decrease the Redemption Price, increase the
Exercise Price, or decrease the number of fractional shares of Common Stock
constituting a Fractional Share, or decreases the amount of other securities,
cash or property for which a Right is exercisable. After the Distribution Date,
the provisions of the Rights Agreement may be amended by the Board of Directors
only to cure any ambiguity, defect or inconsistency, to make changes which do
not adversely affect the interests of the holders of Rights (other than holders
whose Rights have become null and void as set forth above) or to shorten or
lengthen any time period under the Rights Agreement; provided that no such
amendment may be adopted to adjust the time period governing redemption at a
time when the Rights are not redeemable.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends, other distributions, or payments of principal
or interest. While the distribution of the Rights will not be taxable to
stockholders of the Company, stockholders may, depending upon the circumstances,
recognize taxable income should the Rights become exercisable or upon the
occurrence of certain events thereafter.
The summary description of the Rights set forth herein does not purport
to be complete and is qualified in its entirety by reference to the Rights
Agreement, which is filed as Exhibit 4(ii) hereto and incorporated by reference
herein.
Possible Anti-takeover Provisions
The Rights Agreement and certain provisions of the Certificate and
By-laws could have the effect of delaying, deferring or preventing, to varying
degrees and in various circumstances, an attempt to acquire control of the
Company without approval of the Board of Directors, even if such acquisition of
control may be favorable to the interests of some or all of the Company's
stockholders. These provisions of the Certificate and By-laws are discussed
below.
The Company's Certificate of Incorporation expressly authorizes the
Board of Directors, in considering a takeover offer, to consider, among other
things, the social, economic or any other material impact which an acquisition
of the Company, or substantially all of its assets, would have upon the
employees and customers of the Company and the communities which it serves. The
Board may also consider any or all of the following:
(1) whether the offer is acceptable based on historical and
present operating results or the financial condition of the
Company and its future prospects;
(2) whether a more favorable offer could be obtained for the
Company, its securities or its assets in the future;
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(3) the reputation and business practice of the offeror and its
management and affiliates as they would affect the employees
and customers of the Company and the future value of the
Company's stock;
(4) the value of securities (if any) which the offeror is offering
in exchange for the Company's securities or assets based on an
analysis of the worth of the Company as compared to the
offeror corporation or other entity whose securities are being
offered; and
(5) any antitrust or other legal or regulatory issues that are
raised by the offer.
In addition, the Certificate of Incorporation specifically authorizes the Board
to take defensive actions if it determines that any such offer should be
rejected.
The Company's By-laws provide that the Board of Directors consists of
three classes of directors, each serving for a term of three years with the term
of one class expiring each year. Generally, a stockholders desiring to make a
nomination for election to the Board of Directors must submit such nomination to
the Company (in writing and with certain requisite information) at least
forty-five (45) days prior to the date on which the Company first mailed its
proxy materials for the immediately preceding year's annual meeting. In
addition, the By-laws provide that a special meeting of stockholders may be
called only by the Chairman or a majority of the Board of Directors.
Item 2. Exhibits
Exhibit 3(i) -- Amended and Restated Certificate of Incorporation.
Exhibit 3(ii) -- Amended and Restated By-laws.
Exhibit 4(i) -- Specimen Certificate of Uni-Marts, Inc. Common Stock
Exhibit 4(ii) -- Rights Agreement between the Company and Mellon
Investor Services LLC, as Rights Agent, dated
February 6, 2002 including Summary of Rights to
Purchase Common Stock, as Exhibit A thereto, and form
of Rights Certificate, as Exhibit B thereto.
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Signature
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this amended registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
UNI-MARTS, INC.
(Registrant)
By: /S/ HENRY D. SAHAKIAN
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Name: Henry D. Sahakian
Title: Chairman of the Board
Date: February 14, 2002
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EXHIBIT INDEX
Exhibit 3(i) -- Amended and Restated Certificate of Incorporation of
the Company (filed as Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the period ended
March 30, 1995, File No. 1-11556, and incorporated
herein by reference thereto).
Exhibit 3(ii) -- Amended and Restated By-Laws of the Company (Filed as
Exhibit 3.2 to the Annual Report of Uni-Marts, Inc.
on Form 10-K/A for the year ended September 30, 2001,
filed on February 6, 2002, and incorporated herein by
reference thereto).
Exhibit 4(i) -- Specimen Certificate of the Company's Common Stock
(filed as Exhibit 4.3 to the Company's Quarterly
Report on Form 10-Q for the period ended April 1,
1993, File No. 1-11556, and incorporated herein by
reference thereto).
Exhibit 4(ii) -- Rights Agreement between the Company and Mellon
Investor Services LLC, as Rights Agent, dated
February 6, 2002 including Summary of Rights to
Purchase Common Stock, as Exhibit A thereto, and form
of Rights Certificate, as Exhibit B thereto.
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