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.
6
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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
8
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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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EXHIBIT 5.1
LAW OFFICES OF
SAUL, EWING, REMICK & SAUL LLP
BALTIMORE, MARYLAND CENTRE SQUARE WEST NEW YORK, NEW YORK
BERWYN, PENNSYLVANIA 1500 MARKET STREET, 38TH FLOOR PRINCETON, NEW JERSEY
HARRISBURG, PENNSYLVANIA PHILADELPHIA, PA 19102-2186 WILMINGTON, DELAWARE
(215) 972-7777
Fax: (215) 972-7725
Internet Email: [email protected]
World Wide Web: http://www.saul.com
March 25, 1999
Uni-Marts, Inc.
477 East Beaver Avenue
State College, PA 16801-5690
Gentlemen:
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") of Uni-Marts, Inc., a Delaware corporation
(the "Company"), covering the registration under the Securities Act of
1933, as amended (the "Securities Act"), of 500,000 shares of common
stock, par value $0.10 per share, of the Company (the "Shares")
pursuant to the Uni-Marts, Inc. Employee Stock Purchase Plan (the
"Plan").
We have examined the Registration Statement, the Certificate of
Incorporation and By-laws of the Company, the Plan and such records,
certificates and other documents as we have considered necessary or
appropriate for the purposes of this Opinion.
Based on the foregoing, it is our opinion that the issuance of
the Shares has been duly authorized and, when issued in accordance
with the terms of the Plan, the Shares will be validly issued, fully
paid and non-assessable.
We hereby consent to the use of our name in the Registration
Statement as counsel who will pass upon the legality of the Shares for
the Company and as having prepared this Opinion as an exhibit to the
Registration Statement. In giving the foregoing consent, we do not
admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/S/ SAUL, EWING, REMICK & SAUL LLP
<PAGE>
EXHIBIT 10.1
__________________________________
UNI-MARTS, INC.
EMPLOYEE STOCK PURCHASE PLAN
__________________________________
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Introduction. . . . . . . . . . . . . . . . . . . . . . . .1
Sec. 1.01 Statement of Purpose . . . . . . . . . . . . . .1
Sec. 1.02 Internal Revenue Code Considerations . . . . . .1
Sec. 1.03 ERISA Considerations . . . . . . . . . . . . . .1
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Definitions . . . . . . . . . . . . . . . . . . . . . . . .1
Sec. 2.01 Board of Directors . . . . . . . . . . . . . . .1
Sec. 2.02 Code . . . . . . . . . . . . . . . . . . . . . .1
Sec. 2.03 Committee. . . . . . . . . . . . . . . . . . . .1
Sec. 2.04 Company. . . . . . . . . . . . . . . . . . . . .1
Sec. 2.05 Effective Date . . . . . . . . . . . . . . . . .1
Sec. 2.06 Election Date. . . . . . . . . . . . . . . . . .1
Sec. 2.07 Eligible Employee. . . . . . . . . . . . . . . .1
Sec. 2.08 Exchange Act . . . . . . . . . . . . . . . . . .2
Sec. 2.09 Market Value . . . . . . . . . . . . . . . . . .2
Sec. 2.10 Participant. . . . . . . . . . . . . . . . . . .2
Sec. 2.11 Plan . . . . . . . . . . . . . . . . . . . . . .2
Sec. 2.12 Plan Year. . . . . . . . . . . . . . . . . . . .2
Sec. 2.13 Purchase Agreement . . . . . . . . . . . . . . .2
Sec. 2.14 Purchase Date. . . . . . . . . . . . . . . . . .2
Sec. 2.15 Purchase Period. . . . . . . . . . . . . . . . .2
Sec. 2.16 Purchase Price . . . . . . . . . . . . . . . . .2
Sec. 2.17 Stock. . . . . . . . . . . . . . . . . . . . . .2
ARTICLE III. . . . . . . . . . . . . . . . . . . . . . . . . . .3
Admission to Participation. . . . . . . . . . . . . . . . .3
Sec. 3.01 Initial Participation. . . . . . . . . . . . . .3
Sec. 3.02 Discontinuance of Participation. . . . . . . . .3
Sec. 3.03 Readmission to Participation . . . . . . . . . .3
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Stock Purchase and Distributions or Withdrawals . . . . . .3
Sec. 4.01 Reservation of Shares. . . . . . . . . . . . . .3
Sec. 4.02 Limitations on Shares Available. . . . . . . . .3
Sec. 4.03 Purchase Price of Shares . . . . . . . . . . . .4
Sec. 4.04 Exercise of Purchase Privilege . . . . . . . . .4
Sec. 4.05 Payroll Deductions and Deposits. . . . . . . . .5
Sec. 4.06 Payment for Stock. . . . . . . . . . . . . . . .5
Sec. 4.07 Share Ownership; Issuance of Certificates. . . .5
Sec. 4.08 Withdrawal or Distribution of Shares . . . . . .6
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ARTICLE V. . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Special Adjustments . . . . . . . . . . . . . . . . . . . .7
Sec. 5.01 Shares Unavailable . . . . . . . . . . . . . . .7
Sec. 5.02 Anti-Dilution Provisions . . . . . . . . . . . .7
Sec. 5.03 Effect of Certain Transactions . . . . . . . . .7
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . .8
Sec. 6.01 Non-Alienation . . . . . . . . . . . . . . . . .8
Sec. 6.02 Administrative Costs . . . . . . . . . . . . . .8
Sec. 6.03 The Committee. . . . . . . . . . . . . . . . . .8
Sec. 6.04 Amendment of the Plan. . . . . . . . . . . . . .8
Sec. 6.05 Expiration and Termination of the Plan . . . . .8
Sec. 6.06 Repurchase of Stock. . . . . . . . . . . . . . .9
Sec. 6.07 Notice . . . . . . . . . . . . . . . . . . . . .9
Sec. 6.08 Government Regulation. . . . . . . . . . . . . .9
Sec. 6.09 Headings, Captions, Gender . . . . . . . . . . .9
Sec. 6.10 Severability of Provisions, Prevailing Law . . .9
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ARTICLE I
INTRODUCTION
Sec. 1.01 STATEMENT OF PURPOSE. The purpose of the
Uni-Marts, Inc. Employee Stock Purchase Plan is to provide eligible
employees of the Company an opportunity to purchase common stock of
the Company. The Board of Directors of the Company believes
that employee participation in stock ownership will be to the mutual
benefit of both the employees and the Company. The Plan will be
effective January 1, 1999, contingent upon approval by the
shareholders of the Company within 12 months after the date on which
the Plan is adopted.
Sec. 1.02 INTERNAL REVENUE CODE CONSIDERATIONS. The Plan
is intended to constitute an "employee stock purchase plan" within the
meaning of section 423 of the Internal Revenue Code of 1986, as
amended.
Sec. 1.03 ERISA CONSIDERATIONS. The Plan is not intended
and shall not be construed as constituting an "employee benefit plan,"
within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended.
ARTICLE II
DEFINITIONS
Sec. 2.01 "Board of Directors" means the board of directors
of the Company or a committee of the board of directors authorized to
act on its behalf.
Sec. 2.02 "Code" means the Internal Revenue Code of 1986,
as amended, and any successor statute of similar nature. References
to specific sections of the Code shall be taken to be references to
corresponding sections of any successor statute.
Sec. 2.03 "Committee" means the committee appointed by the
Board of Directors to administer the Plan, as provided in Section
6.03.
Sec. 2.04 "Company" means Uni-Marts, Inc., a Delaware
corporation.
Sec. 2.05 "Effective Date" shall mean a January 1, 1999.
Sec. 2.06 "Election Date" means each October 1, January 1,
April 1, and July 1 or such other dates as the Committee shall
specify.
Sec. 2.07 "Eligible Employee" means each employee of the
Company (i) who is classified by the Company as a full or part-time
employee (and not as an independent contractor), (ii) whose customary
employment is for more than twenty (20) hours per week and for more
than five (5) months per year, (iii) who is not deemed for purposes of
<PAGE>
section 423(b)(3) of the Code to own stock possessing five percent
(5%) or more of the total combined voting power or value of all
classes of stock of the Company, and (iv) who has completed at least
one year of service with the Company.
Sec. 2.08 "Exchange Act" means the Securities Exchange Act
of 1934, as amended, and as the same may hereafter be amended.
Sec. 2.09 "Market Value" means the last price for the Stock
as reported on the principal market on which the Stock is traded for
the date of reference. If there was no such price reported for the
date of reference, "Market Value" means the last reported price for
the Stock on the day next preceding the date of reference for which
such price was reported.
Sec. 2.10 "Participant" means each Eligible Employee who
elects to participate in the Plan.
Sec. 2.11 "Plan" means the Uni-Marts, Inc. Employee Stock
Purchase Plan, as set forth herein and as hereafter amended.
Sec. 2.12 "Plan Year" means each fiscal year of the Company
during which the Plan is in effect.
Sec. 2.13 "Purchase Agreement" means the instrument
prescribed by the Committee pursuant to which an Eligible Employee may
enroll as a Participant and subscribe for the purchase of shares of
Stock on the terms and conditions offered by the Company. The
Purchase Agreement is intended to evidence the Company's offer of an
option to the Eligible Employee to purchase Stock on the terms and
conditions set forth therein and herein.
Sec. 2.14 "Purchase Date" means the last day of each
Purchase Period.
Sec. 2.15 "Purchase Period" means each quarterly period or
other period specified by the Committee, beginning on or after the
Effective Date, during which the Participant's Stock purchase is
funded through payroll deduction accumulations (or a lump
sum deposit if permitted under Section 4.05(b)).
Sec. 2.16 "Purchase Price" means the purchase price for
shares of Stock purchased under the Plan, determined as set forth in
Section 4.03.
Sec. 2.17 "Stock" means the common stock of the Company.
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ARTICLE III
ADMISSION TO PARTICIPATION
Sec. 3.01 INITIAL PARTICIPATION. An Eligible Employee may
elect to participate in the Plan and may become a Participant
effective as of any Election Date, by executing and filing with the
Committee a Purchase Agreement at such time in advance of such
Election Date as the Committee shall prescribe. The Purchase
Agreement shall remain in effect until modified or canceled in
accordance with the terms of this Plan.
Sec. 3.02 DISCONTINUANCE OF PARTICIPATION. A Participant
may voluntarily cease his or her participation in the Plan and stop
payroll deductions at any time by filing a notice of cessation of
participation on such form and at such time in advance of the Purchase
Date as the Committee shall prescribe. Notwithstanding anything in
the Plan to the contrary, if a Participant ceases to be an Eligible
Employee, his or her participation automatically shall cease, no
further purchase of Stock shall be made for the Participant and the
Participant may obtain payment of any funds held in his or her account
under the Plan.
Sec. 3.03 READMISSION TO PARTICIPATION. Any Eligible
Employee who has previously been a Participant, who has discontinued
participation (whether by cessation of eligibility or otherwise), and
who wishes to be reinstated as a Participant may again become a
Participant by executing and filing with the Committee a new Purchase
Agreement. Reinstatement to Participant status shall be effective as
of any Election Date, provided the Participant files a new Purchase
Agreement with the Committee at such time in advance of the Election
Date as the Committee shall prescribe.
ARTICLE IV
STOCK PURCHASE AND DISTRIBUTION OR WITHDRAWALS
Sec. 4.01 RESERVATION OF SHARES. There shall be 500,000
shares of Stock authorized for issuance or transfer under the Plan,
subject to adjustment in accordance with the antidilution provisions
hereinafter set forth. Except as provided in Section 5.02, the
aggregate number of shares of Stock that may be purchased under the
Plan shall not exceed the number of shares of Stock reserved under the
Plan.
Sec. 4.02 LIMITATIONS ON SHARES AVAILABLE.
(a) The maximum number of shares of Stock that may be
purchased for each Participant on a Purchase Date is the lesser of (a)
the number of whole shares of Stock that can be purchased by applying
the full balance of the Participant's withheld funds to the purchase
of shares of Stock at the Purchase Price, or (b) the Participant's
proportionate part of the maximum number of whole shares of Stock
available under the Plan, as stated in Sections 4.01 and 5.01.
-3-
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(b) The maximum number of shares of Stock that a
Participant may purchase during a Purchase Period is 6,000; however,
the Committee may select a different limitation prior to the first day
of any such Purchase Period.
(c) Notwithstanding all of the foregoing, as a further
limitation, if any person entitled to purchase shares pursuant to any
offering under the Plan would be deemed for purposes of section
423(b)(3) of the Code to own stock (including any number of shares of
Stock that such person would be entitled to purchase under the Plan)
possessing five percent (5%) or more of the total combined voting
power or value of all classes of stock of Company, the maximum number
of shares of Stock that such person shall be entitled to purchase
pursuant to the Plan shall be reduced to that number which, when added
to the number of shares of stock that such person is deemed to own
(excluding any number of shares of Stock that such person would be
entitled to purchase under the Plan), is one less than such five
percent (5%). Any amounts withheld from a Participant's compensation
that cannot be applied to the purchase of Stock by reason of the
foregoing limitation shall be returned to the Participant as
soon as practicable.
Sec. 4.03 PURCHASE PRICE OF SHARES. The Purchase Price per
share of the Stock sold to Participants pursuant to any offering under
the Plan shall be 90% of the average Market Value of such share for
all of the trading days during the Purchase Period but in no
event less than the lower of (i) 90% of the Market Value of such share
on the first day of the Purchase Period or (ii) 90% of the Market
Value of such share on the Purchase Date. Notwithstanding the
foregoing, the Board of Directors may determine that the Purchase
Price shall be the Market Value, or a percentage of the Market Value,
on either of such dates or the lower of such dates, so long as the
percentage shall not be lower than 85% of such Market Value.
Sec. 4.04 EXERCISE OF PURCHASE PRIVILEGE.
(a) On the first day of each Purchase Period, each
Participant shall be granted an option to purchase shares of Stock at
the Purchase Price specified in Section 4.03 as of the Purchase Date.
The option shall continue in effect through the Purchase Date
for the Purchase Period and may be exercised only on the Purchase
Date. Subject to the provisions of Section 4.02 above and of
paragraph (c) of this Section 4.04, on each Purchase Date, the
Participant shall automatically be deemed to have exercised his or her
option to purchase shares of Stock, unless he or she notifies the
Committee, in such manner and at such time in advance of the Purchase
Date as the Committee shall prescribe, of his or her desire not
to make such purchase.
(b) There shall be purchased for the Participant on
each Purchase Date, at the Purchase Price for the Purchase Period, the
largest number of whole shares of Stock as can be purchased with the
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amounts withheld from the Participant's compensation (or deposited by
the Participant as described in Section 4.05(b) during the Purchase
Period. Each such purchase shall be deemed to have occurred on the
Purchase Date occurring at the close of the Purchase Period for which
the purchase was made.
(c) A Participant may not purchase shares of Stock
having an aggregate Market Value of more than twenty-five thousand
dollars ($25,000), determined at the beginning of each Purchase
Period, during any calendar year in which one or more offerings under
this Plan are outstanding at any time, and a Participant may not
purchase a share of Stock under any offering after the expiration of
the Purchase Period for the offering.
Sec. 4.05 PAYROLL DEDUCTIONS AND DEPOSITS.
(a) Each Participant may authorize payroll
deductions from his or her compensation for the purpose of funding the
purchase of Stock pursuant to his or her Purchase Agreement. In the
Purchase Agreement, each Participant shall authorize an after-tax
payroll deduction from each payment of compensation during a Purchase
Period of an amount not less than $20 per paycheck ($40 for any
Participant on a monthly payroll period) and not more than 25% of such
Participant's compensation. A Participant may change the deduction
to any permissible level effective as of any Election Date. A change
shall be made by the Participant's filing with the Committee of a
notice in such form and at such time in advance of the date on which
the change is to be effective as the Committee shall prescribe.
(b) The Committee may allow Participants to deposit
funds with the Company to be used for the purpose of purchasing Stock
pursuant to his or her Purchase Agreement, instead of or in addition
to payroll deductions pursuant to subsection (a). The total amount
that a Participant may contribute to the Plan during a Purchase Period
(through payroll deductions and deposits) may not exceed 25% of the
Participant's compensation for the Purchase Period. The Committee
shall designate the dates by which any such deposits must be made for
a Purchase Period.
Sec. 4.06 PAYMENT FOR STOCK. The Purchase Price for all
shares of Stock purchased by a Participant under the Plan shall be
paid out of the Participant's authorized payroll deductions (and any
deposits made by a Participant pursuant to Section 4.05(b), if
permitted by the Committee). All funds received or held by the
Company under the Plan are general assets of the Company, shall be
held free of any trust or other restriction, and may be used for any
corporate purpose.
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Sec. 4.07 SHARE OWNERSHIP; ISSUANCE OF CERTIFICATES.
(a) The shares of Stock purchased by a Participant on
a Purchase Date shall, for all purposes, be deemed to have been issued
or sold at the close of business on the Purchase Date. Prior to that
time, none of the rights or privileges of a shareholder of the Company
shall inure to the Participant with respect to such shares of Stock.
All the shares of Stock purchased under the Plan shall be credited to
an account on the books of the Company until delivered by the Company
in a manner as determined by the Committee.
(b) The Committee, in its sole discretion, may
determine that shares of Stock shall be delivered by the Company by
(i) issuing and delivering to the Participant a certificate for the
number of shares of Stock purchased by the Participant on a Purchase
Date or during a Plan Year or other period determined by the
Committee, (ii) issuing and delivering certificates for the number of
shares of Stock purchased by all Participants on a Purchase Date
or during a Plan Year or other period determined by the Committee to a
firm which is a member of the National Association of Securities
Dealers, as selected by the Committee from time to time, which shares
shall be maintained by such firm in a separate brokerage account
for each Participant, or (iii) issuing and delivering certificates for
the number of shares of Stock purchased by all Participants on a
Purchase Date or during the Plan Year or other period determined by
the Committee to a bank or trust company or affiliate thereof, as
selected by the Committee from time to time, which shares may be held
by such bank or trust company or affiliate in street name, but with a
separate account maintained by such entity for each Participant
reflecting such Participant's share interests in the Stock; provided,
however, that no certificate shall be issued under any circumstances
for fewer than 100 shares unless the Participant has terminated
employment with the Company. Each certificate or account, as the
case may be, may be in the name of the Participant or, if he or she so
designates on the Participant's Purchase Agreement, in the
Participant's name jointly with the Participant's spouse, with right
of survivorship. A Participant who is a resident of a jurisdiction
that does not recognize such joint tenancy may have a certificate or
account held in the Participant's name as tenant in common with the
Participant's spouse, with or without right of survivorship.
(c) In addition to any restrictions or limitations on
the withdrawal or distribution of Stock purchased under the Plan as
set forth in Section 4.08 or otherwise hereunder, the Committee, in
its sole discretion, may impose such restrictions or limitations as
it shall determine on the withdrawal or distribution of Stock, the
issuance of individual stock certificates or the withdrawal from any
shareholder accounts established for a Participant.
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(d) Any dividends payable with respect to shares of
Stock credited to a shareholder account of a Participant established
pursuant to Section 4.07(a) shall be paid directly to the Participant
at such time as is administratively practicable as determined by the
Committee.
Sec. 4.08 WITHDRAWAL OR DISTRIBUTION OF SHARES.
(a) A Participant may request a withdrawal of shares
of Stock purchased for the Participant under the Plan at any time by
making a request in such form and at such time as the Committee shall
prescribe but in no event prior to 12 months after the Purchase Date
of such shares.
(b) If a Participant terminates his or her employment
with the Company or otherwise ceases to be an Eligible Employee,
subject to the limitation of paragraph (a), the Participant shall
receive a distribution of his or her shares of Stock held in
any shareholder account established.
(c) If a Participant is to receive a withdrawal or
distribution of shares of Stock, the withdrawal or distribution shall
be made in whole shares of Stock.
ARTICLE V
SPECIAL ADJUSTMENTS
Sec. 5.01 SHARES UNAVAILABLE. If, on any Purchase Date,
the aggregate funds available for the purchase of Stock would purchase
a number of shares in excess of the number of shares of Stock then
available for purchase under the Plan, the following events shall
occur:
(a) The number of shares of Stock that would otherwise
be purchased by each Participant shall be proportionately reduced on
the Purchase Date in order to eliminate such excess; and
(b) The Plan shall automatically terminate immediately
after the Purchase Date as of which the supply of available shares is
exhausted.
Sec. 5.02 ANTI-DILUTION PROVISIONS. The aggregate number
of shares of Stock reserved for purchase under the Plan, as provided
in Section 4.01, and the calculation of the Purchase Price per share
may be appropriately adjusted by the Committee to reflect any
increase or decrease in the number of issued shares of Stock resulting
from a subdivision or consolidation of shares or other capital
adjustment, or the payment of a stock dividend, or other increase or
decrease in such shares, if effected without receipt of consideration
by the Company.
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Sec. 5.03 EFFECT OF CERTAIN TRANSACTIONS. Subject to any
required action by the shareholders, if the Company shall be the
surviving corporation in any merger or consolidation, any offering
hereunder shall pertain to and apply to the shares of stock of the
Company. However, in the event of a dissolution or liquidation of the
Company, or of a merger or consolidation in which the Company is not
the surviving corporation, the Plan and any offering hereunder shall
terminate upon the effective date of such dissolution, unless the
Board determines otherwise, liquidation, merger or consolidation, and
the balance of any amounts withheld from a Participant's compensation
(or deposited pursuant to Section 4.05(b) which had not by such time
been applied to the purchase of Stock shall be returned to the
Participant.
ARTICLE VI
MISCELLANEOUS
Sec. 6.01 NON-ALIENATION. The right to purchase shares of
Stock under the Plan is personal to the Participant, is exercisable
only by the Participant during the Participant's lifetime, except as
hereinafter set forth, and may not be assigned or otherwise
transferred by the Participant. If a Participant dies, there shall be
delivered to the executor, administrator or other personal
representative of the deceased Participant such shares of Stock
and such residual amounts as may remain to the Participant's credit
from amounts withheld from the Participant's compensation (or
deposited pursuant to Section 4.05(b) before the Participant's death)
as of the Purchase Date occurring at the close of the period in which
the Participant's death occurs, including shares of Stock purchased as
of that date or prior thereto with moneys withheld from the
Participant's compensation.
Sec. 6.02 ADMINISTRATIVE COSTS. The Company shall pay the
administrative expenses associated with the operation of the Plan.
Sec. 6.03 THE COMMITTEE. The Board of Directors shall
appoint a Committee, which shall have the authority and power to
administer the Plan and to make, adopt, construe, and enforce rules
and regulations not inconsistent with the provisions of the Plan. The
Committee shall adopt and prescribe the contents of all forms required
in connection with the administration of the Plan, including, but not
limited to, the Purchase Agreement, payroll withholding
authorizations, withdrawal documents, and all other notices required
hereunder. The Committee shall have the fullest discretion
permissible under law in the discharge of its duties. The Committee's
interpretations and decisions and determinations of fact with respect
to the Plan shall be final and conclusive.
Sec. 6.04 AMENDMENT OF THE PLAN. The Board of Directors
may, at any time and from time to time, amend the Plan in any respect,
except that any amendment that is required to be approved by the
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shareholders under Section 423 of the Code shall be submitted to the
shareholders of the Company for approval.
Sec. 6.05 EXPIRATION AND TERMINATION OF THE PLAN. The Plan
shall continue in effect for ten (10) years from the Effective Date,
unless terminated prior to that date pursuant to the provisions of the
Plan or pursuant to action by the Board of Directors. The Board of
Directors shall have the right to terminate the Plan at any time
without prior notice to any Participant and without liability to any
Participant. Upon the expiration or termination of the Plan, the
balance, if any, then standing to the credit of each Participant from
amounts withheld from the Participant's compensation which has not, by
such time, been applied to the purchase of Stock shall be refunded to
the Participant.
Sec. 6.06 REPURCHASE OF STOCK. The Company shall not be
required to purchase or repurchase from any Participant any of the
shares of Stock that the Participant acquires under the Plan.
Sec. 6.07 NOTICE. A Purchase Agreement and any notice that
a Participant files pursuant to the Plan shall be on the form
prescribed by the Committee and shall be effective only when received
by the Committee. Delivery of such forms may be made by hand or by
certified mail, sent postage prepaid, to the Committee at 477 East
Beaver Avenue, State College, PA 16801-5690. Delivery by any other
mechanism shall be deemed effective at the option and discretion of
the Committee.
Sec. 6.08 GOVERNMENT REGULATION. The Company's obligation
to sell and to deliver the Stock under the Plan is at all times
subject to all approvals of any governmental authority required in
connection with the authorization, issuance or delivery of such Stock.
Sec. 6.09 HEADINGS, CAPTIONS, GENDER. The headings and
captions herein are for convenience of reference only and shall not be
considered as part of the text. The masculine shall include the
feminine, and vice versa.
Sec. 6.10 SEVERABILITY OF PROVISIONS, PREVAILING LAW. The
provisions of the Plan shall be deemed severable. In the event any
such provision is determined to be unlawful or unenforceable by a
court of competent jurisdiction or by reason of a change in an
applicable statute, the Plan shall continue to exist as though such
provision had never been included therein (or, in the case of a change
in an applicable statute, had been deleted as of the date of
such change). The Plan shall be governed by the laws of the
Commonwealth of Pennsylvania to the extent such laws are not in
conflict with, or superseded by, federal law.
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Uni-Marts, Inc. on Form S-8 of our report dated December
16, 1998, appearing in the Annual Report on Form 10-K of Uni-Marts,
Inc. for the year ended September 30, 1998.
/S/ DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
March 26, 1999
