As filed with the Securities and Exchange Commission on March 26, 1999
Registration No. _______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
UNI-MARTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 25-1311379
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
477 East Beaver Avenue,
State College, PA 16801-5690
(Address of principal executive offices) (Zip Code)
UNI-MARTS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
HENRY D. SAHAKIAN
Chairman and Chief Executive Officer
Uni-Marts, Inc.
477 East Beaver Avenue,
State College, PA 16801
(Name and address of agent for service)
(814) 234-6000
(Telephone number, including area code, of agent for service)
Copy of all communications to:
ROBERT J. LICHTENSTEIN
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
(215) 963-5000
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per price per registration
registered registered share (1) share (1) fee
- -----------------------------------------------------------------------
Common Stock, 500,000(2) $2.625 $1,312,500 $364.88
$.10 par value
(1) Estimated pursuant to Rule 457(h) solely for the purpose of
calculating the registration fee, based upon the average of the
high and low sales prices of shares of Common Stock on March 24,
1999, as reported on the American Stock Exchange.
(2) Pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement also covers such additional shares as
may hereinafter be offered or issued to prevent dilution
resulting from stock splits, stock dividends, recapitalizations
or certain other capital adjustments.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document containing the information required to be included in
Part I of this Registration Statement will be given or sent to all persons
who are eligible to participate in the Uni-Marts, Inc. Employee Stock
Purchase Plan (the "Plan"), as specified by Rule 428.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934 (the "Exchange Act")
by Uni-Marts, Inc. (the "Company") are incorporated herein by reference:
(a) The Annual Report of the Company on Form 10-K for the year ended
September 30, 1998 and the Amended Annual Report of the Company on Form 10-K/A
for the year ended September 30, 1998.
(b) The Quarterly Report of the Company on Form 10-Q for the quarter
ended December 31, 1998.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A/A, filed with the Commission on
March 25, 1999.
Each document filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such document. Any statement contained in a document incorporated
by reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein (or in any other
subsequently filed document which also is incorporated by reference herein)
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed to constitute a part hereof except as so modified or
superseded.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the Delaware General Corporation Law ("Section
145") permits indemnification of directors, officers, agents and controlling
persons of a corporation under certain conditions and subject to certain
limitations. Article THIRTEENTH of the Company's Amended and Restated
Certificate of Incorporation (the "Certificate") requires the Company to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
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the right of the Company) by reason of the fact that he is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation
or other enterprise. The Company will indemnify any such person against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. In the case of an action
by or in the right of the Company, no indemnification may be made in respect of
any claim, issue or matter as to which such person shall have been adjudjed to
be liable to the Company unless and only to the extent that despite the
adjudication of liability, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper. The Certificate
further provides that to the extent a director, officer, employee or agent of
the Company has been successful in the defense of any third-party or corporate
proceeding referred to above or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses actually and reasonably
incurred by him in connection therewith. The Certificate specifies the
procedures for determination of entitlement to indemnification.
In addition, Section 145 and the Certificate permit the Company to
purchase and maintain insurance that protects its directors, officers,
employees and agents or persons who serve in such positions for another
corporation or other enterprise at the request of the Company, against
any liabilities incurred in connection with their service in such position
whether or not the Company would otherwise have the power to indemnify under
the Certificate. The Company maintains such insurance.
The Company has entered into indemnification agreements (the
"Indemnification Agreements") with each of its directors. The Indemnification
Agreements, which were approved by the Company's Board of Directors and
stockholders, provide for prompt indemnification "to the fullest extent
permitted by applicable law" and for the prompt advancement of expenses,
including reasonable attorneys' fees and other costs and expenses incurred in
connection with any action suit or proceeding in which the director is a
witness or which is brought against the director in his capacity as a director,
officer, employee, agent, or fiduciary of the Company or of any enterprise
which the director was serving at the request of the Company. A director
cannot be indemnified under the agreement if he did not act in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Company; and with respect to criminal proceedings, a director
cannot be indemnified if he had reasonable cause to believe his conduct was
unlawful. The agreements provide specific guidelines as to when and under what
circumstances indemnification may be provided and/or expenses may be advanced,
and also require that, if directors' and officers' liability insurance is
maintained, each director be provided with the maximum coverage provided to any
other director. Rights of directors under the Indemnification Agreements are
in addition to any other rights available to them under Delaware law,
directors' and officers' liability insurance, the Company's Certificate, as
amended, or otherwise, but double payment is prohibited by the terms of the
Indemnification Agreements. The Indemnification Agreements continue until and
terminate upon the later of ten years after the date that the indemnitee shall
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have ceased to serve as a director of the Company of the final termination of
all pending proceedings in respect of which the indemnitee is granted rights of
indemnification or advancement of expenses.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The following exhibits are filed as part of this
Registration Statement.
Exhibit
Number Exhibit
- ------ -------
5.1 Opinion of Saul, Ewing, Remick & Saul LLP
10.1 Uni-Marts, Inc. Employee Stock Purchase Plan
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Saul, Ewing, Remick & Saul LLP (included in
its opinion filed as Exhibit 5.1 hereto)
24.1 Power of Attorney (included on signature page of this
Registration Statement)
Item 9. Undertakings.
------------
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information
set forth in the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change in such information in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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(3) To remove from any registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in State College, Pennsylvania, on March 26, 1999.
UNI-MARTS, INC.
/S/ HENRY D. SAHAKIAN
By: ------------------------------------
Henry D. Sahakian
Chairman of the Board
(Principal Executive Officer)
/S/ J. KIRK GALLAHER
By: ------------------------------------
J. Kirk Gallaher
Executive Vice President and
Chief Financial Officer
(Principal Accounting Officer)
(Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons
in the capacities and on the date indicated.
EACH PERSON IN SO SIGNING ALSO MAKES, CONSTITUTES AND APPOINTS HENRY D.
SAHAKIAN AND J. KIRK GALLAHER, AND EACH OF THEM ACTING ALONE, HIS TRUE AND
LAWFUL ATTORNEY-IN-FACT, WITH FULL POWER OF SUBSTITUTION, TO EXECUTE AND CAUSE
TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, ANY AND ALL AMENDMENTS
AND POST-EFFECTIVE AMENDMENTS TO THIS REGISTRATION STATEMENT, WITH EXHIBITS
THERETO AND OTHER DOCUMENTS IN CONNECTION THEREWITH, AND HEREBY RATIFIES AND
CONFIRMS ALL THAT SAID ATTORNEY-IN-FACT OR HIS SUBSTITUTE OR SUBSTITUTES MAY DO
OR CAUSE TO BE DONE BY VIRTUE HEREOF.
Name Capacity Date
/S/ HENRY D. SAHAKIAN Chairman of the Board March 26, 1999
- ------------------------ (principle executive officer)
Henry D. Sahakian
/S/ J. KIRK GALLAHER Executive Vice President, March 26, 1999
- ------------------------ Director and Chief Financial
J. Kirk Gallaher Officer (principal financial
and accounting officer)
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- ------------------------
M. Michael Arjmand Director
/S/ HERBERT C. GRAVES
- ------------------------
Herbert C. Graves Director March 26 , 1999
/S/ STEPHEN B. KRUMHOLZ
- ------------------------
Stephen B. Krumholz Director March 26, 1999
/S/ DANIEL D. SAHAKIAN
- ------------------------
Daniel D. Sahakian Director March 26, 1999
/S/ GEROLD C. SHEA
- ------------------------
Gerold C. Shea Director March 26, 1999
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UNI-MARTS, INC.
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
Exhibit
Number Exhibit
- ------- -------
5.1 Opinion of Saul, Ewing, Remick & Saul LLP
10.1 Uni-Marts, Inc. Employee Stock Purchase Plan
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Saul, Ewing, Remick & Saul LLP (included in
its opinion filed as Exhibit 5.1 hereto)
24.1 Power of Attorney (included on signature page of this
Registration Statement)
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