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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 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
MARSH SUPERMARKETS, INC.
(Exact name of registrant as specified in its charter)
INDIANA 35-0918179
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
9800 CROSSPOINT BLVD.
INDIANAPOLIS, INDIANA 46256-3350
(Address of Principal Executive Offices) (Zip Code)
If 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), please check the following box. [ ]
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A(d), please check the following box. [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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N/A
Securities to be registered pursuant to Section 12(g) of the Act:
CLASS B COMMON STOCK
(Title of Class)
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Marsh Supermarkets, Inc. is amending and restating its Registration
Statement on Form 8-A/A relating to Marsh's Class B Common Stock filed with the
Securities and Exchange Commission on May 3, 1991 in order to describe the
securities in "plain English."
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 35,000,000 shares of stock,
classified as follows:
- 30,000,000 shares of common stock, no par value per share,
consisting of:
- 15,000,000 shares of Class A Common Stock, and
- 15,000,000 shares of Class B Common Stock; and
- 5,000,000 shares of cumulative preferred stock, par value $100
per share.
As of July 10, 2000,4,040,308 shares of Class A Common Stock were
issued and outstanding, 4,376,456 shares of Class B Common Stock were issued and
outstanding, and no shares of preferred stock were issued and outstanding. The
discussion below describes our common stock and preferred stock, but is not
complete. You should read it together with our Articles of Incorporation and
bylaws and the applicable provisions of the Indiana Business Corporation Law.
Our Articles and bylaws are incorporated by reference as exhibits to this
Amendment No. 2.
COMMON STOCK
The holders of Class A Common Stock are entitled to one vote per share
on all matters to be voted on by shareholders. The holders of Class B Common
Stock shall not vote, except in limited circumstances specified in the Articles
which affect the Class B shares. The common shareholders are not entitled to
cumulative voting in the election of directors, which means that the holders of
more than 50% of the shares voting in the election of directors can elect all of
the directors then standing for election.
The holders of Class A and Class B Common Stock are entitled to share
equally on a per share basis in any dividends declared by our board of directors
in its discretion. Dividends may be payable in shares of Class A or Class B
Common Stock to holders of Class A Common Stock or payable in shares of Class B
Common Stock to holders of Class B Common Stock.
If we liquidate, dissolve or wind up operations, the common
shareholders are entitled to share equally on a per share basis in any assets
remaining after all prior claims are satisfied and any liquidation preference on
the preferred stock is paid in full.
Our Articles do not give common shareholders preemptive or other
subscription rights. The Articles do not contain any provisions providing for
the redemption of common shares. Once issued and paid for, all shares of common
stock outstanding will be fully paid and nonassessable. The rights, preferences
and privileges of common shareholders are subject to, and may be adversely
affected by, the rights of holders of any series of preferred stock that we may
designate and issue in the future.
Each share of Class B Common Stock may be converted into a share of
Class A Common Stock if:
- the outstanding shares of Class A Common Stock equal less than
10% of the outstanding shares of Class A and Class B Common
Stock together; or
- if, because of the existence of the Class B Common Stock,
either class, or both classes, is excluded from being traded
on the Nasdaq National Stock Market or any stock exchange.
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If any person, or group acting together, acquires beneficial ownership
of at least 10% of our outstanding Class A Common Stock, the shareholder must,
within 90 days, make a public tender offer to acquire additional shares of Class
B Common Stock if the shareholder does not own an equal or greater percentage of
the Class B Common Stock. In such a case the shareholder must offer to acquire
the number of shares equal to the shareholder's percentage ownership of Class A
Common Stock times the number of shares of Class B Common Stock then outstanding
less the number of shares of Class B Common Stock already held by the
shareholder. Once a shareholder has completed this procedure, it is required to
be repeated each time the shareholder acquires an additional 5% of our Class A
Common Stock.
Our common stock is quoted on Nasdaq.
We do not intend to issue any additional shares of stock that would
make our common stock ineligible for continued listing or cause our common stock
to be delisted from Nasdaq.
PREFERRED STOCK
The authorized preferred stock may be issued in one or more designated
series or classes. Our board of directors may issue shares of preferred stock
without approval of our shareholders, except as required by applicable law or by
the rules of Nasdaq. The board of directors is also authorized to establish the
voting, dividend, redemption, conversion, liquidation, and other relative
provisions for each series or class. The preferred stock does not have voting
rights. The issuance of preferred stock could also, under some circumstances,
make it harder for a third party to acquire, or discourage a third party from
acquiring, a majority of our outstanding voting stock.
We have designated 100,000 shares of our preferred stock as Series A
Junior Participating Cumulative Preferred Stock. None of the Series A preferred
shares are currently outstanding. These shares have no voting rights. The terms
of the Series A preferred shares are described in our Articles which are
incorporated by reference to this Amendment No. 2.
PROVISIONS OF THE ARTICLES, BYLAWS AND INDIANA LAW
General
The provisions of our Articles, bylaws, and Indiana statutory law
described in this section may delay or make it difficult to effect acquisitions
or changes of control of us that are not approved by our board of directors. We
have implemented these provisions to help develop our business in a manner that
will foster our long-term growth without the disruptive threat of a takeover
which our board of directors believes is not in our best interests or in the
best interests of our shareholders.
Directors and Officers
Our bylaws state that there will be 10 directors. Our Articles and
bylaws provide that the board of directors is divided into three classes of as
nearly equal size as possible. The classes serve staggered three-year terms.
This means that each year only one class is elected. Vacancies on the board of
directors, including vacancies created by an increase in the number of
directors, may be filled by the board of directors, acting by a majority of the
remaining directors then in office. The Articles also provide that directors may
be removed by the affirmative vote of the holders of a majority of the voting
power of all shares of our capital stock then entitled to vote in the election
of directors.
The overall effect of these provisions in our Articles and bylaws may
be to make it more difficult to effect a change in control or remove our
incumbent directors.
Officers are elected annually by and serve at the pleasure of the board
of directors. Our officers include a Chief Executive Officer, President, one or
more Vice Presidents, a Secretary, a Treasurer, and any other officers appointed
by the board of directors.
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Advance Notice for Shareholder Proposals or Making Nominations at Meetings
Our bylaws provide that shareholders who want to bring business before
a meeting of our shareholders or to nominate candidates for election as
directors at an annual meeting or special meeting at which directors are to be
elected must provide timely notice in writing. Subject to any other applicable
requirements, only business that has been brought before the meeting by or at
the direction of the board of directors or by a shareholder who has given timely
written notice of an intention to bring that business before the meeting, in
proper form, to our corporate secretary, may be conducted at a shareholder
meeting. The presiding officer at the shareholder meeting has the authority to
make determinations in this regard. Only persons who are:
- selected and recommended by the board of directors; or
- nominated by a shareholder who has given timely written
notice, in proper form, to the Secretary prior to a meeting at
which directors are to be elected
will be eligible for election as directors.
To be timely, notice of nominations or other business to be brought
before any meeting must be received by our corporate secretary:
- at least 60 days but no more than 90 days before the meeting,
or
- if less than 70 days' notice of the date of the meeting is
given, at the close of business on the 10th day following the
date on which notice of the meeting is first given to
shareholders.
These requirements do not apply to a request for inclusion of a proposal in our
proxy statement under Rule 14a-8 of the Exchange Act. Those proposals must meet
the requirements of that rule.
Our bylaws also specify requirements as to the content of the notice of
a shareholder proposal or shareholder nomination of a director nominee. The
person submitting the notice of nomination must provide, among other things, the
name and address under which they appear on our books and the class and number
of shares of our capital stock that they beneficially own.
Amendment of the Bylaws and Articles
According to their terms, our bylaws may be adopted, amended or
repealed by the affirmative vote of three-fourths of the total directors
regardless of the number in attendance.
Our board of directors can amend our Articles at any time to change
some minor provisions, as specified by the statute. Any other items require the
approval by and the recommendation of the board of directors, the affirmative
vote of any voting group entitled to vote, and the affirmative vote of a
majority of the shares entitled to vote.
ANTI-TAKEOVER LEGISLATION
Provisions in our Articles, bylaws and Indiana law could make it harder
for someone to acquire us through a tender offer, proxy contest or otherwise.
Our Articles provide that some business transactions, such as mergers,
consolidations, or sales of all or substantially all of our assets with or to a
shareholder who owns 5% or more of our voting stock, must be approved by at
least 75% of our voting stock. This provision of our Articles may only be
revised by shareholders holding 75% of our voting stock.
In some circumstances, the affirmative vote of at least 80% of our
voting stock, other than stock held by a party interested in the transaction,
shall be required to approve business combinations with any person who owns 10%
or more of our voting stock. This provision of our Articles may only be revised
by the affirmative vote of 80% of our voting stock.
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Under the Indiana Business Corporation Law, a director may, in
considering the best interests of a corporation, consider the effects of any
action on shareholders, employees, suppliers and customers of the corporation,
on communities in which offices or other facilities of the corporation are
located, and any other factors the director considers pertinent.
The IBCL also provides that when a target corporation, incorporated in
Indiana and having its principal place of business, principal office or
substantial assets in Indiana, has a specified threshold of ownership by Indiana
residents, any acquisition which, together with its previous holdings, gives the
acquiror at least 20% of the target's voting stock triggers a shareholder
approval mechanism. If the acquiror files a statutorily required disclosure
statement, the target's management has 50 days to hold a special meeting of
shareholders at which all disinterested shareholders of the target not
affiliated with the acquiror or any officer or inside director of the target
consider and vote upon whether the acquiror will have voting rights for the
shares of the target held by it. Without shareholder approval, the shares
acquired by the acquiror have no voting rights, except in limited circumstances.
If the acquiror fails to file the statutorily required disclosure statement, the
target can redeem the acquiror's shares at a price to be determined according to
procedures devised by the target. These provisions of the IBCL apply to Indiana
corporations, unless the corporation has elected otherwise, which we have not
done, in its articles of incorporation or bylaws.
The IBCL provides that no business combination, defined to include some
mergers, sales of assets, sales of 5% or more of outstanding stock, loans,
recapitalizations or liquidations or dissolutions, involving a corporation and
an interested shareholder, defined to include any holder of 10% or more of the
corporation's voting stock, may be entered into unless it has been approved by
the board of directors or:
- five years have expired since the acquisition of shares of the
corporation by the interested shareholder; and
- a majority of the shareholders, excluding the interested
shareholder, approved the business combination or all
shareholders are paid fair value for their stock.
However, this law does not restrict any offer to purchase all of a
corporation's shares.
Appraisal, or dissenters' rights, do not apply to holders of shares
which are traded on Nasdaq.
TRANSFER AGENT AND REGISTRAR
National City Bank is the transfer agent and registrar for the common
stock.
ITEM 2. EXHIBITS.
1. Form of certificate evidencing shares of the Class B Common
Stock (incorporated by reference to Registration Statement
Form 8-A/A filed with the SEC on May 3, 1991).
2. Restated Articles of Incorporation, as amended as of May 15,
1991 (incorporated by reference to Form 10-K for the year
ended March 30, 1991).
3. Bylaws of Marsh Supermarkets, Inc., as restated (incorporated
by reference to Form 10-Q for the quarter ended January 3,
1998).
4. Amended and Restated Rights Agreement, dated December 24,
1998, between Marsh Supermarkets, Inc. and National City Bank,
as Rights Agent (incorporated by reference to Form 8-K filed
December 24, 1998).
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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 registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
MARSH SUPERMARKETS, INC.
Date: August 8, 2000 By: /s/ P. Lawrence Butt
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P. Lawrence Butt
Senior Vice President, Counsel and
Secretary
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EXHIBIT INDEX
1. Form of certificate evidencing shares of the Class B Common
Stock (incorporated by reference to Registration Statement
Form 8-A/A filed with the SEC on May 3, 1991).
2. Restated Articles of Incorporation, as amended as of May 15,
1991 (incorporated by reference to Form 10-K for the year
ended March 30, 1991).
3. Bylaws of Marsh Supermarkets, Inc., as restated (incorporated
by reference to Form 10-Q for the quarter ended January 3,
1998).
4. Amended and Restated Rights Agreement, dated December 24,
1998, between Marsh Supermarkets, Inc. and National City Bank,
as Rights Agent (incorporated by reference to Form 8-K filed
December 24, 1998).
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