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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 3
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 BOULEVARD
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 Act registration statement file number to which this form relates:
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(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of Each Exchange on Which
Title of Each Class 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:
SERIES A JUNIOR PARTICIPATING CUMULATIVE PREFERRED STOCK PURCHASE RIGHTS
(Title of class)
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Marsh Supermarkets, Inc. is amending and restating its Registration
Statement on Form 8-A/A relating to its Series A Preferred Stock Purchase Rights
filed with the Securities and Exchange Commission on May 31, 1991, as amended,
in order to describe the securities in "plain English."
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On August 1, 1989, our board of directors approved the adoption of a
rights agreement, commonly known as a "poison pill," between us and Merchants
National Bank & Trust Company of Indianapolis. The rights agreement was amended
on May 1, 1991 and amended and restated on December 24, 1998, substituting
National City Bank as rights agent, among other changes. When we refer to the
rights agreement in this registration statement, we are referring to it as
amended and restated. The discussion below describes the rights agreement, but
is not complete. You should read it together with the rights agreement. The
rights agreement is attached to this document as Exhibit 1 and is incorporated
herein by reference.
Issuance of Rights
Under the rights agreement, we have issued and/or will issue the
following stock purchase rights:
- One right for each share of our common stock, no par value per
share, outstanding at the close of business on August 11,
1989; and
- One right will automatically attach to each share of common
stock that we issue between August 11, 1989 and the time that
the rights become exercisable.
When a right is exercised, the holder will be entitled to purchase one
one-hundredth of a share, referred to as a Unit, of Series A Junior
Participating Cumulative Preferred Stock, $100 par value per share, from us at a
purchase price of $65 per Unit. This price will be subject to adjustment under
the terms of the rights agreement. The purchase price is payable in cash or by
certified or bank check or bank draft payable to the order of Marsh.
Initial Exercise of Rights
The rights will not be exercisable initially. Instead, the rights will
be attached to and trade with all shares of our common stock outstanding as of,
and issued after, August 11, 1989. The rights will separate from the common
stock and become exercisable, after any of the following events occurs, this
date being referred to as the distribution date:
- ten days after we publicly announce that a person or group of
affiliated or associated persons, other than us or any of our
subsidiaries or our or our subsidiaries' employee benefit
plans, which person or group will be referred to as an
Acquiring Person, has acquired, obtained the right to acquire,
or otherwise obtained beneficial ownership of 20% or more of
the then outstanding shares of any class of our common stock;
or
- ten days after the commencement of a tender offer or exchange
offer that would result in a person or group beneficially
owning 20% or more of the then outstanding shares of any class
of our common stock.
The date of the announcement in the first bullet point above is referred to as
the Stock Acquisition Date.
As soon as practicable after the rights become exercisable, we will
mail out rights certificates to the holders of record of our common stock who
are eligible to receive rights. After we mail the rights certificates, they
alone will represent the rights.
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Right to Receive Shares Upon Exercise
If a Person becomes the beneficial owner of 20% or more of the then
outstanding shares of any class of our Common Stock, then each holder of a right
will have the right to receive, upon exercise, shares of Class A common stock,
or, in limited circumstances, other consideration, having a value of two times
the exercise price of the right. The exercise price of the right will be equal
to the purchase price ($65) multiplied by the number of Units of preferred stock
issuable upon exercise of the right prior to the event described above.
This section will not apply, however, to any rights that are or were
beneficially owned by any Acquiring Person, which will be null and void after
the event described above occurs.
Right to Receive Common Stock of Acquiring Person
Under the circumstances set forth below and upon exercise of the
rights, each right holder will have the right to receive common stock of the
Acquiring Person with a value equal to two times the then current exercise price
of the right. Each right holder will have the right contemplated by this
paragraph if, at any time after a person has become an Acquiring Person:
- We are acquired in a merger or other business combination and
we are not the continuing or surviving corporation;
- Any person effects a share exchange or merger with us and all
or part of our common stock is converted into or exchanged for
securities, cash or property of any other entity; or
- We sell or transfer 50% or more of our assets or earning
power.
Adjustments
The purchase price and the number of shares of our preferred stock
issuable upon exercise of the rights are subject to adjustment from time to time
to prevent dilution. Adjustments will occur in the following instances:
- when a stock dividend is declared on, or there is a
subdivision, combination or reclassification of, our preferred
stock;
- when holders of our preferred stock are granted rights or
warrants to subscribe for preferred stock or convertible
securities at less than the current market price of the
preferred stock; or
- upon distribution to the holders of the preferred stock of
evidences of indebtedness or assets, excluding regular
quarterly cash dividends, or of subscription rights or
warrants, other than those referred to above.
With some exceptions, the purchase price of the rights will not be
adjusted until cumulative adjustments amount to at least 1% of the purchase
price. We may, but are not obligated to, issue fractional shares.
Transfer and Expiration
Until the distribution date,
- the rights will be evidenced by our common stock certificates;
- new common stock certificates issued after August 11, 1989
will contain a notation incorporating the rights agreement by
reference; and
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- the surrender for transfer of any stock certificate
representing outstanding common stock will also constitute the
transfer of the rights associated with the common stock
represented by that certificate.
The rights will expire at the close of business on December 24, 2008
unless we redeem them earlier, as described below.
Redemption
A majority of the Board of Directors may redeem the rights in whole,
but not in part, at a price of $.01 per right, payable in cash at any time until
fifteen days after the Stock Acquisition Date. Once redeemed, the rights will
terminate immediately. After redemption, the only right that the rights holders
will have will be to receive the redemption price.
Amendments to Rights Agreement
We can supplement or amend any of the provisions of the rights
agreement at any time before the distribution date without the consent of the
holders of the rights. After the distribution date, we can supplement or amend
the provisions of the rights agreement without the consent of the holders of the
rights in order to:
- cure any ambiguity, defect or inconsistency;
- make changes that are consistent with the Board's objectives
in adopting the rights agreement, except that as soon as any
person becomes an Acquiring Person, no amendment may adversely
affect the interests of rights holders; or
- shorten or lengthen any time period under the rights
agreement, except the time period governing redemption.
Additional Terms
As of July 10, 2000, 4,040,308 share of our Class A Common Stock and
4,376,456 shares of our Class B Common Stock were issued and outstanding. Each
outstanding share of our common stock has received one right. As of July 31,
2000, no shares of our preferred stock were issued and outstanding. A total of
100,000 shares of preferred stock have been designated as Series A Junior
Participating Cumulative Preferred Stock, par value $100 per share, and are
reserved for issuance upon exercise of the rights, subject to adjustment.
Until a right is exercised, the holder, as such, will have no rights as
a shareholder. This means the right holder will not have the right to vote or to
receive dividends. The distribution of the rights will not be taxable to
shareholders or to us. However, shareholders may, depending upon the
circumstances, recognize taxable income if the rights become exercisable for
shares of our preferred stock, or other consideration.
The shares of preferred stock that may be acquired upon exercise of the
rights will be nonredeemable and subordinate to any other shares of preferred
stock that we may issue. Also, these shares of preferred stock will have no
voting rights.
Each share of preferred stock will have a minimum preferential
quarterly dividend rate of $9.00 per share. Each share of preferred stock will
also be entitled to receive dividends at the same rate as dividends are paid on
our common stock.
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In the event of liquidation, the holder of a Unit of preferred stock
will receive a preferred liquidation payment equal to $1.00 per Unit plus an
amount equal to the amount paid with respect to a share of our common stock in
excess of the preferred liquidation payout.
Customary antidilution provisions protect the rights of holders of the
preferred stock in the event of mergers and share exchanges and with respect to
dividends, liquidation and voting.
Because of the nature of the preferred stock's dividend and liquidation
rights, the economic value of one Unit of preferred stock that may be acquired
upon the exercise of each right should approximate the economic value of one
share of our common stock.
Potential Anti-Takeover Effects
The rights may have anti-takeover effects. The rights will cause
substantial dilution to a person or group that attempts to acquire us on terms
not approved by a majority of our Board of Directors, unless the offer is
conditioned on the acquisition of a substantial number of rights. However, the
rights should not interfere with any merger or other business combination
approved by the Board of Directors since the rights may be redeemed by us at
$.01 per right at any time on or prior to the fifteenth day after the Stock
Acquisition Date. The rights are intended to encourage persons who may seek to
acquire control of us to initiate the acquisition through negotiations with our
Board of Directors. One effect of the rights, however, may be to discourage a
third party from making a partial tender offer, attempting to obtain a
substantial equity position, or seeking to obtain control of us. To the extent
any potential acquirors are deterred by the rights, the rights may have the
effect of preserving incumbent management in office.
ITEM 2. EXHIBITS.
Exhibit
No.
1. Amended and Restated Rights Agreement, dated December 24, 1998, between
Marsh Supermarkets, Inc. and National City Bank, as Rights Agent,
including, Copy of Certificate of Designation, Preferences and Rights
(Exhibit A), Form of Rights Certificate (Exhibit B) and Form of Summary
of Rights (Exhibit C) (incorporated by reference to Exhibit 99.2 to
Marsh Supermarkets, Inc.'s Current Report on 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.
By: /s/ P. Lawrence Butt
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P. Lawrence Butt
Senior Vice President, Counsel and
Secretary
Dated: August 8, 2000
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EXHIBIT INDEX
1. Amended and Restated Rights Agreement, dated December 24, 1998, between
Marsh Supermarkets, Inc. and National City Bank, as Rights Agent,
including, Copy of Certificate of Designation, Preferences and Rights
(Exhibit A), Form of Rights Certificate (Exhibit B) and Form of Summary
of Rights (Exhibit C) (incorporated by reference to Exhibit 99.2 to
Marsh Supermarkets, Inc.'s Current Report on Form 8-K, filed December
24, 1998).
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