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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 16, 2000
WALL STREET DELI, INC.
(Exact name of registrant as specified in its Charter)
DELAWARE 0-11271 63-0514240
(State of Incorporation) (Commission File Number) (IRS Employer I.D. No.)
One Independence Plaza, Suite 100
Birmingham, Alabama 35209
(Address of principal executive offices)
(205) 870-0020
(Registrant's telephone number)
EXHIBIT INDEX ON PAGE 5
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ITEM 5. OTHER EVENTS.
RIGHTS AGREEMENT
On February 16, 2000, the Board of Directors of Wall Street Deli, Inc.,
a Delaware corporation (the "Registrant"), authorized and declared a dividend
distribution of one right (each a "Right" and collectively, the "Rights") for
each share of common stock of the Registrant, $0.05 par value (the "Common
Stock"), outstanding at the close of business on March 1, 2000 (the "Record
Date"). In addition, the Board of Directors authorized the issuance of one Right
with respect to each share of Common Stock that becomes outstanding between the
Record Date and the earlier of the Distribution Date or the Expiration Date (as
such terms are defined in the Rights Agreement described below) or the date, if
any, on which the Rights are redeemed.
The description and terms of the Rights are set forth in the Rights
Agreement dated as of February 16, 2000, between the Registrant and American
Stock Transfer and Trust Company, as Rights Agent (the "Rights Agreement"),
which is Exhibit 1 to the Registrant's Registration Statement on Form 8-A filed
with the Commission on March 1, 2000 and incorporated herein by this reference.
The Registrant announced the distribution of the Rights on February 16,
2000. A copy of the press release in which such announcement was made is
included herewith as Exhibit 99.1 and incorporated herein by reference. A letter
which the Registrant proposes to deliver to its stockholders as soon as
practicable after the Record Date is included herewith as Exhibit 99.2.
BYLAW AMENDMENTS
On February 16, 2000, the Board of Directors of the Registrant adopted
certain amendments to the Registrant's Bylaws. The amendments effect the
following changes to the Bylaws: (i) elimination of the right of stockholders of
the Registrant to call special meetings of stockholders; (ii) creation of
certain advance notice requirements, pursuant to which stockholders desiring to
nominate directors or propose any other business must make known their
intentions prior to a meeting of stockholders, and must provide certain
information and follow prescribed procedures; (iii) creation of an orderly
procedure for fixing a record date in the event a stockholder attempts to have
the stockholders of the Registrant take action by written consent; and (iv) a
requirement that stockholders of the Registrant may not make, adopt, alter,
amend, change or repeal the Bylaws of the Registrant except upon the affirmation
vote of not less than two/thirds (66 2/3%) of the outstanding stock of the
Registrant entitled to vote thereon. A copy of the Registrant's Bylaws, as
amended, is included herewith as Exhibit 3.2 and incorporated herein by
reference.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
<S> <C>
3.2 Bylaws of Wall Street Deli, Inc., as amended through February 16, 2000.
4.1 Rights Agreement, dated as of February 16, 2000, between Wall Street
Deli, Inc. and American Stock Transfer and Trust Company, which includes
as Exhibit A thereto the form of a Right Certificate, filed as Exhibit 1
to the Registrant's Registration Statement on Form 8-A filed with the
Commission on March 1, 2000 and incorporated herein by this reference.
99.1 Press Release dated February 16, 2000
99.2 Letter to be sent to stockholders of record on March 1, 2000.
</TABLE>
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: March 1, 2000 WALL STREET DELI, INC.
By: /s/ Jeffrey V. Kaufman
---------------------------------
Jeffrey V. Kaufman
President and Chief Executive
Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Page
- ------- ----------- ----
<S> <C> <C>
3.2 Bylaws of Wall Street Deli, Inc., as amended through
February 16, 2000 6
99.1 Press Release dated February 16, 2000 23
99.2 Letter to be sent to stockholders of record on March 1, 2000. 25
</TABLE>
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EXHIBIT 3.2
WALL STREET DELI, INC.
B Y - L A W S
(AS AMENDED THROUGH FEBRUARY 16, 2000)
ARTICLE I: OFFICES
SECTION 1. The registered office shall be located at the place stated
in the corporation's articles, or at such place as the board of directors shall
from time to time determine.
SECTION 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II: ANNUAL MEETINGS OF SHAREHOLDERS
SECTION 1. All meetings of shareholders for the election of directors
shall be held at such place within or without the State of Delaware as may be
fixed from time to time by the board of directors, and if no place is stated
then at the principal office.
SECTION 2. Annual meetings of shareholders, commencing with the year
1992, shall be held on the 4th Thursday in March if not a legal holiday or at
such other date and time as shall be designated from time to time by the board
of directors and stated in the notice of meeting, and if a legal holiday, then
on the next secular day following, at 7:30 a.m., at which they shall elect by a
plurality vote a board of directors, and transact such other business as may
properly be brought before the meeting.
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SECTION 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each shareholder of record
entitled to vote thereat not less than ten nor more than fifty (50) days before
the date of the meeting, either personally or by mail, by or at the direction of
the president, the secretary, or the officer or persons calling the meeting.
ARTICLE III: SPECIAL MEETINGS OF SHAREHOLDERS
SECTION 1. Special meetings of shareholders for any purpose other than
the election of directors may be held at such time and place within or without
the State of Delaware as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof. If no place is stated, special meetings
shall be held at the corporation's principal office.
SECTION 2. Special meetings of the shareholders may be called at any
time for any purpose or purposes by a majority of the Board of Directors, the
Chairman of the Board, or the President, but no such special meetings may be
called by any other person or persons. Special meetings shall be held at such
place, either within or without the State of Delaware, as is stated in the call
and notice thereof. (AMENDED FEBRUARY 16, 2000)
SECTION 3. Written or printed notice of a special meeting of
shareholders, stating the time, place and purpose or purposes thereof, shall be
given to each shareholder entitled to vote thereat, at least ten and not more
than fifty days before the date fixed for the meeting.
SECTION 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes described in the meeting notice.
ARTICLE IV: QUORUM AND VOTING OF STOCK
SECTION 1. A majority of the votes entitled to be cast on a matter by
the voting group
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constitutes a quorum of the voting group for action on that matter except as
otherwise provided by statute or by the articles of incorporation. If, however,
such quorum shall not be present or represented at any meeting of the
shareholders, the shareholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for more
than one hundred and twenty (120) days after the date fixed for the original
meeting, the directors must fix a new record date and notice of the adjourned
meeting shall be given to each shareholder of record entitled to vote at the
meeting. Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting.
SECTION 2. If a quorum is present, action on a matter by a voting group
is approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action unless the vote of a greater number of
affirmative votes is required by law or the articles of incorporation.
SECTION 3. Each outstanding share, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders unless the articles of incorporation or law provides otherwise. A
shareholder may vote either in person or by proxy executed in writing by the
shareholder or by his duly authorized attorney-in-fact.
SECTION 4. Any action required to be taken at a meeting of the
shareholders may be taken
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without a meeting if one or more consents in writing, setting forth the action
so taken, shall be signed by all of the shareholders entitled to vote with
respect to the subject matter thereof.
ARTICLE V: DIRECTORS
SECTION 1. The board of directors shall consist of one or more
directors. Within the limits above specified, the number of directors shall be
determined by resolution of the board of directors, or by the shareholders at
the annual meeting. The directors shall be elected at the annual meeting of
shareholders, and each director elected shall hold office until his successor is
elected and qualified. The first board of directors shall hold office until the
first annual meeting of shareholders.
SECTION 2. Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled only by the shareholders.
SECTION 3. The business affairs of the corporation shall be managed by
its board of directors which may exercise all such powers of the corporation and
do all such lawful acts and things as are not by statute or by the articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
SECTION 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Delaware, at such place or places as they may from time to time determine.
SECTION 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers
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or otherwise consistent with the articles of incorporation or by-laws.
ARTICLE VI: MEETINGS OF THE BOARD OF DIRECTORS
SECTION 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Delaware.
SECTION 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
SECTION 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
SECTION 4. Unless the articles of incorporation or these by-laws
provide otherwise, special meetings of the board of directors may be called by
the president on at least two days' notice of the time, date and place of
meeting to each director, either personally or by mail or by telegram.
SECTION 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director at the beginning of
the meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
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SECTION 6. A majority of the directors shall constitute a quorum for
the transaction of business unless a greater number is required by law or by the
articles of incorporation. (A quorum of the board of directors may consist of no
fewer than one-third of the fixed or prescribed number of directors. The act of
a majority of the directors present at any meeting at which a quorum is present
shall be the act of the board of directors, unless the act of a greater number
is required by statute or by the articles of incorporation. If a quorum shall
not be present at any meeting of directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
SECTION 7. Unless the articles of incorporation or by-laws provide
otherwise, action required or permitted by law to be taken at a board of
directors' meeting may be taken without a meeting if the action is taken by all
members of the board. The action must be evidenced by one or more written
consents describing the action taken, signed by each director, and included in
the minutes or filed with the corporate records reflecting the action taken.
ARTICLE VII: COMMITTEES
The board of directors, by resolution adopted by a majority of the
number of directors fixed by the by-laws or otherwise, may create one or more
committees and appoint members of the board to serve on them. Each committee
must have two or more members, who serve at the pleasure of the board of
directors. Such committee shall have and exercise all of the authority of the
board of directors in the management of the corporation, except as otherwise
required by law.
ARTICLE VIII: NOTICES
SECTION 1. Whenever, under the provisions of the statutes or of the
articles of incorporation
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or of these by-laws, notice is required to be given to any director or
shareholder, it shall not be construed to mean personal notice, but such notice
may be given in writing, by mail, addressed to such director or shareholder, at
his address as it appears on the records of the corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Notice to directors may
also be given by telegram.
SECTION 2. Whenever any notice whatever is required to be given under
the provisions of the statutes or under the provisions of the articles of
incorporation or these by-laws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
SECTION 3. ADVANCE NOTICE OF SHAREHOLDER NOMINEES. Nominations of
persons for election to the Board of Directors of the Corporation may be made at
a meeting of shareholders by or at the discretion of the Board of Directors or
by any shareholder of the Corporation entitled to vote in the election of
directors at the meeting who complies with the notice procedures set forth in
this Section. Such nominations, other than those made by or at the direction of
the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a shareholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
corporation not less than twenty (20) days nor more than sixty (60) days prior
to the meeting; provided, however, that in the event less than thirty (30) days
notice or prior public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the meeting was mailed or such public disclosure was
made. Such shareholder's notice shall set forth (a) as to each person, if any,
whom the shareholder proposes to nominate for
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election or re-election as a director: (i) the name, age, business address and
residence address of such person, (ii) the principal occupation or employment of
such person, (iii) the class and number of shares of the Corporation which are
beneficially owned by such person, (iv) any other information relating to such
person that is required by law to be disclosed in solicitations of proxies for
election of directors, (v) such person's written consent to being named as a
nominee and to serving as a director if elected and (vi) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of Directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended; and (b) as to the shareholder giving the notice: (i) the name and
address, as they appear on the Corporation's books, of such shareholder, and
(ii) the class and number of shares of the Corporation which are beneficially
owned by such shareholder, and (iii) a description of all arrangements or
understandings between such shareholder and each nominee and any other person or
persons (naming such person or persons) relating to the nomination. At the
request of the Board of Directors any person nominated by the Board for election
as a director shall furnish to the Secretary of the Corporation that information
required to be set forth in the shareholder's notice of nomination which
pertains to the nominee. No person shall be eligible for election as a director
of the Corporation unless nominated in accordance with the procedures set forth
in this Section. The chairman of the meeting shall, if the facts warrant,
determine and declare at the meeting that a nomination was not made in
accordance with the procedures prescribed by these bylaws, and if he should so
determine, he shall so declare at the meeting and the defective nomination shall
be disregarded. (AMENDED FEBRUARY 16, 2000)
SECTION 4. ADVANCE NOTICE OF SHAREHOLDER BUSINESS. At any meeting of
the shareholders, only such business shall be conducted as shall have been
properly brought before the meeting. To
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be properly brought before a meeting, business must be: (a) as specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (b) otherwise properly brought before the meeting by or
at the direction of the Board of Directors, or (c) otherwise properly brought
before the meeting by a shareholder. Business to be brought before a meeting by
a shareholder shall not be considered properly brought if the shareholder has
not given timely notice thereof in writing to the Secretary of the corporation.
To be timely, a shareholder's notice must be delivered to or mailed and received
at the principal executive offices of the corporation not less than twenty (20)
nor more than sixty (60) days prior to the meeting; provided, however, that in
the event less than thirty (30) days notice or prior public disclosure of the
date of the meeting is given or made to shareholders, notice by the shareholder
to be timely must be so received not later than the close of business on the
tenth day following the day on which such notice of the date of the meeting was
mailed or such public disclosure was made. A shareholder's notice to the
Secretary shall set forth as to each matter the shareholder proposes to bring
before the meeting: (i) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting, (ii) the name and address of the shareholder proposing such business,
(iii) the class and number of shares of the corporation, which are beneficially
owned by the shareholder, (iv) any material interest of the shareholder in such
business, and (v) any other information that is required by law to be provided
by the shareholder in his capacity as a proponent of a shareholder proposal.
Notwithstanding anything in these bylaws to the contrary, no business shall be
conducted at any meeting except in accordance with the procedures set forth in
this Section. The chairman of the meeting shall, if the facts warrant, determine
and declare at the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section, and, if he
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should so determine, he shall so declare at the meeting that any such business
not properly brought before the meeting shall not be transacted. (AMENDED
FEBRUARY 16, 2000)
ARTICLE IX: OFFICERS
SECTION 1. The officers of the corporation may be elected or appointed
by the board of directors or by a duly elected or appointed officer if
authorized by the board of directors. The corporation must have at least one
officer. The same individual may simultaneously hold more than one office in the
corporation.
SECTION 2. The board of directors at its first meeting after each
annual meeting of shareholders shall choose a president, vice-president, and
secretary/treasurer, none of whom need be a member of the board.
SECTION 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board of directors or by an officer authorized by the
board of directors.
SECTION 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
SECTION 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed with or without cause at any time by the
affirmative vote of a majority of the board of directors. Any vacancy occurring
in any office of the corporation shall be filled by the board of directors or by
an officer authorized by the board of directors. Each officer has the authority
and shall perform the duties as set forth herein or as prescribed by the board
of directors or by direction of an officer
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authorized by the board of directors to prescribe the duties of other officers.
THE PRESIDENT
SECTION 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
SECTION 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENT
SECTION 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president shall perform the duties of the
president, and when so acting shall have all the powers of and be subject to all
the restrictions upon the president. The vice-president shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
THE SECRETARY/TREASURER
SECTION 9. The secretary/treasurer shall attend all meetings of the
board of directors and all meetings of the shareholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the shareholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be.
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He shall have custody of the corporate seal of the corporation and he shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature.
SECTION 11. He shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
SECTION 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
SECTION 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
ARTICLE X: CERTIFICATES FOR SHARES
SECTION 1. The shares of the corporation shall be represented by
certificates signed (manually or in facsimile) by the president or
vice-president and the secretary of the corporation, and may be sealed with the
seal of the corporation or a facsimile thereof.
If the issuing corporation is authorized to issue different
classes of shares or different series within a class, the designations, relative
rights, preferences and limitations applicable to each class and the variations
in rights, preferences, and limitations determined for each series (and the
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authority of the board of directors to determine variations for future series)
must be summarized on the front or back of each certificate. Alternatively, each
certificate may state conspicuously on its front or back that the corporation
will furnish the shareholder this information on request in writing and without
charge.
SECTION 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
SECTION 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
SECTION 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate canceled and the transaction recorded upon the books of the
corporation.
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FIXING RECORD DATE
SECTION 5. Record Date. In order that the Corporation may determine
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for any other lawful
purpose, the Board of Directors of the Corporation may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date: (a) in
the case of the determination of shareholders entitled to vote at any meeting of
shareholders or adjournment thereof, shall not be more than sixty (60) nor less
than ten (10) days before the date of such meeting; (b) in the case of the
determination of shareholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors; and (c) in the case of any other action, shall not be more than sixty
(60) days prior to such other action. Any shareholder of record seeking to have
the shareholders authorize or take corporate action by written consent shall, by
written notice to the Secretary, request the Board of Directors to fix a record
date. The Board of Directors shall promptly, but in all events within ten (10)
days after the date on which such request is received, adopt a resolution fixing
the record date. If no record date is fixed: (x) the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; (y) the record date for
determining shareholders entitled to express
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consent to corporate action in writing without a meeting when no prior action of
the Board of Directors is required by law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action; and (z) the record date for determining shareholders for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(AMENDED FEBRUARY 16, 2000)
REGISTERED SHAREHOLDERS
SECTION 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable to calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
LIST OF SHAREHOLDERS
SECTION 7. The officer or agent having charge of the transfer books for
shares shall make a complete list of the shareholders entitled to vote at a
shareholders' meeting, arranged by voting group in alphabetical order, with the
address of each and the number of shares held by each, which list, beginning two
business days after notice of the meeting is given for which the list was
prepared and
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continuing through the meeting, shall be kept on file at the principal office of
the corporation and shall, after written demand by the shareholder or the
shareholder's agent or attorney authorized in writing, be subject to inspection
by any shareholder at any time during usual business hours and at the expense of
the shareholder. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholder
or the shareholder's agent or attorney authorized in writing during the whole
time of the meeting. The original share ledger or transfer book, or a duplicate
thereof, shall be prima facie evidence as to who are the shareholders entitled
to examine such list or share ledger or transfer book or to vote at any meeting
of the shareholders.
ARTICLE XI: GENERAL PROVISIONS
DIVIDENDS
SECTION 1. Subject to the provisions of the articles of incorporation
relating thereto, if any, dividends may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in shares of stock, subject to any provisions of the articles of
incorporation.
SECTION 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors, from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or the equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
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<PAGE> 17
CHECKS
SECTION 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
SECTION 4. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
SECTION 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII: AMENDMENTS
SECTION 1. DIRECTORS. In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is expressly authorized to
make, adopt, alter, amend, change or repeal the Bylaws of the Corporation;
provided, however, that the Board of Directors may not alter, amend or repeal
any Bylaw establishing the number of directors or what constitutes a quorum at
shareholders' meetings. (AMENDED FEBRUARY 16, 2000)
SECTION 2. SHAREHOLDERS. The shareholders of the Corporation may not
make, adopt, alter, amend, change or repeal the Bylaws of the Corporation except
upon the affirmation vote of not less than two/thirds (66 2/3%) of the
outstanding stock of the Corporation entitled to vote thereon; provided,
however, that the power of the shareholders to make, adopt, alter, amend, change
or repeal
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<PAGE> 18
the Bylaws of the Corporation is further subject to the provisions of the
Certificate of Incorporation.
(AMENDED FEBRUARY 16, 2000)
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<PAGE> 1
EXHIBIT 99.1
March 1, 2000
Dear Stockholder:
I am pleased to inform you that on February 16, 2000, the Board of
Directors of Wall Street Deli, Inc. (the "Company") adopted a Rights Agreement
comprising a stockholder rights plan (the "Plan"). We believe that this Plan
will help protect the value of your investment in Wall Street Deli, Inc. With
this letter, we are sending you a summary describing the Plan. The adoption of
this Plan requires no action on your part.
The purpose of the Plan is to assure that all stockholders are treated
fairly by anyone who might seek to obtain control of the Company. The business
environment has changed in many ways over the years, and the corporate takeover
environment provides hostile bidders with a variety of coercive takeover
tactics. Your Board believes that a stockholder rights plan continues to be an
important tool to enable the Board to effectively represent the interests of all
stockholders in the event of an unsolicited takeover attempt. The Plan is not
unique; over 3,000 corporations throughout the country have adopted stockholder
rights plans.
The Plan was not adopted because of any current effort by another party
to acquire the Company. We are not aware of any present effort to acquire
control of the Company, but the existence of the Plan should help protect you
against unfair takeover techniques such as open-market accumulations of large
blocks of stock, partial or two-tiered offers that do not treat stockholders
equally and other similar tactics which do not provide all the stockholders the
full value of their investment.
Unless the Rights established by the Plan are redeemed by the Company,
the occurrence of certain takeover-related events will cause the Rights to
convert into the right to acquire securities of the Company (or of the acquirer)
at a significant discount. These takeover-related events include the acquisition
by any person or group (other than certain existing stockholders) of 15% or more
of the Company's common stock. The merger of the Company with and into any other
person and the sale or transfer of assets or earning power aggregating more than
50% of the Company's assets or earning power. The effect is to dilute the
acquiring person's interest in the Company and to raise the price of acquiring
the Company. Since the Rights are subject to redemption prior to the occurrence
of certain events, a potential acquirer can avoid triggering the Rights by
negotiating with the Company's Board of Directors to establish a full and fair
offering price.
This Plan does not in any way alter the financial strength of the
Company or interfere with its business strategy or operations. The adoption of
the Plan is not dilutive, does not affect reported earnings per share, is not
taxable to you or the Company, and will not affect your trading of common stock.
The Board and management continue to be committed to serving the best
interests of Company stockholders, employees and the communities in which we
operate. We believe Wall Street Deli, Inc. has a bright future. The distribution
to you of the Rights under the Plan reflects our determination that you, our
stockholders, be given every opportunity to participate fully in that future.
Very truly yours,
Jeffrey V. Kaufman
President and Chief Executive Officer
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<PAGE> 1
EXHIBIT 99.2
BIRMINGHAM, ALABAMA, FEBRUARY 16, 2000. Wall Street Deli, Inc. (Nasdaq: WSDI)
announced today that its Board of Directors has adopted a Stockholder Rights
Plan in which common stock purchase rights will be distributed as a dividend at
the rate of one Right for each share of the Company's Common Stock outstanding
as of the close of business on March 1, 2000. The Rights Plan was adopted in
order to ensure that the Company's stockholders are protected against partial
tender offers or share accumulations that might allow a third party to gain
control of the Company without paying all stockholders a fair price for their
shares. Although the Rights Plan will not prevent a takeover of the Company, it
will encourage a third party interested in acquiring the Company to negotiate
with the Board. Adoption of the Rights Plan was not a response to any known
effort to acquire the Company. "The Rights Plan is designed to allow all Wall
Street Deli stockholders to realize the long-term value of their investment in
the Company and to protect stockholders in the event of an unfair, coercive
offer to acquire the Company," said Jeffrey V. Kaufman, President and Chief
Executive Officer of Wall Street Deli. According to Mr. Kaufman, over 3,000
public companies currently have similar Rights Plans in place.
Each Right will entitle stockholders to purchase one one-hundredth share of
Common Stock of the Company at an exercise price of $1.50. The Rights will be
exercisable if another party acquires beneficial ownership of 15% or more of
Wall Street Deli Common Stock, or upon the commencement of a tender or exchange
offer that, if consummated, would result in another party acquiring 15% or more
of Wall Street Deli Common Stock. In the event of such an acquisition or similar
event as described in the Rights Plan, each Right, except those owned by the
acquiring party, will enable the holder of the Right to purchase that number of
shares of Common Stock which equals the exercise price of the Right divided by
one-half of the market price of such Common Stock. In addition, if the Company
is involved in a merger or other transaction with another company in which it is
not the surviving corporation, or it sells or transfers 50% or more of its
assets or earning power to another company, each Right will entitle its holder
to purchase that number of shares of common stock of the acquiring company which
equals the exercise price of the Right divided by one-half of the market price
of such company's common stock.
The Company will generally be entitled to redeem the Rights at $0.001 per Right
at any time until the tenth business day following the later of a public
announcement that an acquiring party has acquired 15% or more of the Company's
Common Stock or the actual knowledge by an executive officer of the Company of
such acquisition.
The non-taxable dividend distribution of Rights will be made on March 1, 2000,
payable to stockholders of record on that date. After the record date, Wall
Street Deli will mail to all stockholders a summary of the Rights Plan. Unless
the Rights are redeemed or exchanged earlier, they will expire on February 16,
2010.
Wall Street Deli operates 99 company-owned and 19 franchised restaurants in 20
markets. The Company's stock is traded on the Nasdaq Stock Market under the
symbol WSDI.
The statements in this press release which are not historical fact are
forward-looking statements that involve risks and uncertainties including, but
not limited to, pricing by competitors, entry of new competitors, changes in the
economy, demand for franchised operations, and other risks detailed in the
Company's filings with the Securities and Exchange Commission.
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