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As filed with the Securities and Exchange Commission on July 27, 1995
Registration No. 33-69136
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Uni-Marts, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 25-1311379
- ------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
477 East Beaver Avenue, State College, Pennsylvania 16801-5690
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(Address of Principal Executive Offices) (Zip Code)
Uni-Marts,Inc. Amended and Restated Equity Compensation Plan
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(Full title of the plan)
Henry D. Sahakian, Chairman
Uni-Marts, Inc., 477 East Beaver Avenue, State College, Pennsylvania 16801-5690
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(Name and address of agent for service)
copy to:
Justin P. Klein, Esquire, Ballard Spahr Andrews & Ingersoll
1735 Market Street, 51st Floor, Philadelphia, Pennsylvania 19103
(814) 234-6000
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(Telephone number, including area code, of agent for service)
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Calculation of Registration Fee
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Title of Proposed maximum Proposed Maximum Amount of
securities to Amount to offering price aggregate registration
be registered be registered per share offering price fee(1)
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Common Stock 855,000 shares $5.00* $4,274,220* $1,335.69*
* Calculated in accordance with Rule 457(c) with respect to 435,271 shares
based upon the average of the high and low prices reported for Common Stock
on the American Stock Exchange, Inc. as of September 10, 1993. With
respect to the remaining 419,729 shares, calculated in accordance with Rule
457(h) based upon the weighted average exercise price of $4.35 per share.
(1) Previously paid.
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PART II
Item 3. Incorporation of Certain Documents by Reference.
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The following documents filed by Uni-Marts, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1994.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") since the end of the
fiscal year ended September 30, 1994.
(c) The description of the Company's Common Stock contained in the
Company's Definitive Proxy Statement for the Annual Meeting of Stockholders held
on February 25, 1993, filed with the Commission on January 27, 1993.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered 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 part hereof from the date of filing of such reports and
documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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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 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 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,
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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 adjudged to be liable to the Company unless and only to the extent that the
court in which such action or suit was brought shall determine 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 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 Restated Certificate of
Incorporation, as amended, or otherwise, but double payment is prohibited by the
terms of the Indemnification Agreements. The Indemnification Agreements
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continue until and terminate upon the later of ten years after the date that the
indemnitee shall have ceased to serve as a director of the Company or 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.
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The issuances of restricted securities that will be reoffered and
resold pursuant to this Registration Statement were deemed to be exempt from
registration under the Securities Act of 1933, as amended, by virtue of Section
4(2) thereof, as transactions not involving any public offering. In each case,
the recipient represented his intention to acquire the securities for investment
only and not with a view to the distribution thereof. Restrictive legends were
affixed to the stock certificates issued in the transactions. The recipients
had adequate access, through employment or otherwise, to information about the
Company.
Item 8. Exhibits.
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Exhibit Number
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4 Uni-Marts, Inc. Amended and Restated Equity
Compensation Plan.*
5 Opinion of Ballard Spahr Andrews & Ingersoll.**
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Ballard Spahr Andrews & Ingersoll
(included in their opinion filed as Exhibit 5).**
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* Filed as Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 30, 1995.
** Previously filed.
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Item 9. Undertakings.
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1. The undersigned registrant hereby undertakes:
(a) 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 to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(b) 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.
(c) To remove from 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.
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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 its Certificate of Incorporation, its By-
Laws 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
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 Amendment
No. 1 to registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of State College, Commonwealth of
Pennsylvania on July 26, 1995.
UNI-MARTS, INC.
By:/S/ J. KIRK GALLAHER
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J. Kirk Gallaher, Executive
Vice President, Chief
Financial Officer, Director
(Principal financial officer
and principal accounting
officer)
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to registration statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
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/S/ HENRY D. SAHAKIAN
- ------------------------------- Chief Executive July 26, 1995
Henry D. Sahakian Officer, Chairman
of the Board
(Principal executive
officer)
/S/ J. KIRK GALLAHER
- ------------------------------- Executive Vice July 26, 1995
J. Kirk Gallaher President, Chief
Financial Officer,
Director (Principal
financial officer and
principal accounting
officer)
/S/ BRUCE K. HEIM
- ------------------------------- Director July 26, 1995
Bruce K. Heim
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Signature Title Date
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/S/ JEREMIAH A. KEATING
- ------------------------------- Director July 26, 1995
Jeremiah A. Keating
/S/ CHARLES R. MARKHAM
- ------------------------------- President, Chief July 26, 1995
Charles R. Markham Operating Officer,
Director
/S/ JOSEPH V. PATERNO
- ------------------------------- Director July 26, 1995
Joseph V. Paterno
/S/ G. DAVID GEARHART
- ------------------------------- Director July 26, 1995
G. David Gearhart
/S/ DANIEL D. SAHAKIAN
- ------------------------------- Director July 26, 1995
Daniel D. Sahakian
/S/ MICHAEL J. SERVENTI
- ------------------------------- Director July 26, 1995
Michael J. Serventi
/S/ CHARLES C. PEARSON JR.
- ------------------------------- Director July 26, 1995
Charles C. Pearson, Jr.
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EXHIBIT INDEX
Exhibit Number Page
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4 Uni-Marts, Inc. Amended and Restated Equity
Compensation Plan.*
5 Opinion of Ballard Spahr Andrews & Ingersoll.**
23(a) Consent of Deloitte & Touche LLP. 9
23(b) Consent of Ballard Spahr Andrews & Ingersoll
(included in their opinion filed as Exhibit 5).**
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* Filed as Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 30, 1995.
** Previously filed.
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INDEPENDENT AUDITORS' CONSENT
Board of Directors and Stockholders of Uni-Marts, Inc.
State College, Pennsylvania
We consent to the incorporation by reference in Registration Statement No.
33-69136 of Uni-Marts, Inc. on Amendment No. 1 to Form S-8 of our report dated
October 26, 1994 appearing in the Annual Report on Form 10-K of Uni-Marts, Inc.
for the year ended September 30, 1994.
/S/ DELOITTE & TOUCHE LLP
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DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
July 25, 1995
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