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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
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JUST FOR FEET, INC.
(Exact name of registrant as specified in its charter)
Delaware 63-0734234
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
7400 Cahaba Valley Road
Birmingham, Alabama 35242
Telephone: (205) 408-3000
(Address, including zip code, of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None None
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If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [ ]
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [ ]
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.0001 Par Value Per Share
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(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered
On June 26, 1998, the registrant, Just For Feet, Inc., a Delaware
corporation (the "Company"), and Just For Feet, Inc., an Alabama corporation
("Just For Feet--Alabama"), completed a merger (the "Merger") of Just For
Feet--Alabama with and into the Company, with the Company being the surviving
corporation, for the purpose of effecting a change of domicile from Alabama to
Delaware. Pursuant to Regulation 12g-3(a) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Common Stock of the Company is deemed
to be registered pursuant to Section 12(g) of the Exchange Act. In addition, the
Company has assumed all registration statements and reports filed by Just For
Feet--Alabama under either the Exchange Act or the Securities Act of 1933, as
amended.
The following information is being filed to set forth a current
description of the capital stock of the Company. The discussion set forth below
is qualified in its entirety by reference to the Certificate of Incorporation
(the "Certificate") and the Bylaws of the Company (the "Bylaws"), copies of
which are attached as Exhibits B and C, respectively, to the Proxy Statement of
Just For Feet--Alabama relating to the Merger, as filed with the Commission on
April 24, 1998.
General
The Certificate authorizes the issuance of 70,000,000 shares of
common stock, par value $0.0001 per share ("Common Stock"), and 5,000,000 shares
of preferred stock, par value $0.0001 per share ("Preferred Stock").
Common Stock
Holders of Common Stock are entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. The Common Stock does not have
cumulative voting rights. The Common Stock has no preemptive rights and no
redemption or conversion privileges. Subject to any preferences of any
outstanding Preferred Stock, the holders of the outstanding shares of Common
Stock are entitled to receive dividends out of assets legally available at such
times and in such amounts as the Board of Directors may, from time to time,
determine, and upon liquidation and dissolution are entitled to receive all
assets available for distribution to the stockholders. A majority vote of shares
represented at a meeting at which a quorum is present is generally sufficient
for actions that require the vote of stockholders, except as otherwise provided
in the Certificate.
The rights, preferences and privileges of the holders of Common Stock
are subject to, and may be adversely affected by, the rights of the holders of
any series of Preferred Stock which the Company may designate and issue in the
future.
Preferred Stock
The Company's Board of Directors may, without further action by
stockholders, from time to time, issue shares of Preferred Stock in series and
may, at the time of issuance, determine the rights, preferences, and limitations
of each series. Any dividend preference of any Preferred Stock which may be
issued would reduce the amount of funds available for the payment of dividends
on Common Stock. Also, holders of Preferred Stock would normally be entitled to
receive a preference payment in the event of any liquidation, dissolution, or
winding-up of the Company before any payment is made to the holders of Common
Stock. Issuances of Preferred Stock, while providing desirable flexibility in
connection with possible acquisitions and other corporate purposes, could, among
other things, adversely affect the voting rights of holders of Common Stock. In
addition, the issuance of Preferred Stock could make it more difficult for a
third party to acquire a majority of the outstanding voting stock. Accordingly,
the issuance of Preferred Stock may be used as an "anti-takeover" device without
further action on the part of the stockholders of the Company.
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Certain Provisions of the Certificate and the Bylaws
Monetary Liability of Directors. The Certificate includes a provision
which eliminates the personal liability of the Company's directors for monetary
damages resulting from breaches of their fiduciary duty of care (provided that
such provision does not eliminate liability for breaches of the duty of loyalty,
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, violations of Section 174 of the Delaware General
Corporation Law (the "Delaware Law"), or for any transaction from which the
director derived an improper personal benefit). This provision does not limit or
eliminate the right of the Company or any stockholder to seek non-monetary
relief such as an injunction or rescission in the event of a breach of a
director's duty of care. The Bylaws provide that the Company shall indemnify its
directors and officers to the fullest extent permitted by the Delaware Law.
No Right to Act By Written Consent or Call Special Meetings. The
Certificate provides that stockholders may act only at an annual or special
meeting of stockholders and not by written consent. In addition, the Certificate
provides that special meetings of stockholders may be called only by a majority
of the Board of Directors. Stockholders are not permitted to call a special
meeting or to require that the Board of Directors call a special meeting of
stockholders.
Stockholder Proposals to be Considered at Meetings and Stockholder
Nominations of Directors. The Bylaws contain an advance notice procedure
applicable to both the proposal of business to be considered at a meeting and
the nomination of directors, but require such notice by a stockholder in
connection with the Company's annual meeting to be delivered to the Company not
less than 60 days nor more than 90 days prior to the first anniversary of the
previous year's annual meeting. If the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, however, notice by the
stockholder to be timely must be delivered no earlier than 90 days prior to the
annual meeting and no later than the later of 60 days prior to the annual
meeting and the 10th day following the issuance by the Company of a press
release announcing the meeting date. Such notice must set forth, at a minimum
(i) as to the stockholder giving notice and, if applicable, the beneficial owner
or the person on whose behalf such proposal is being made (A) the name and
address of such person as such information appears on the books of the Company,
(B) the class and number of such shares of the Company which are owned
beneficially and of record by such person; (ii) a brief description of the
business desired to be brought before the meeting and the reasons for conducting
such business at the meeting; (iii) a representation that the stockholder is a
holder of record of shares of the Company entitled to vote at such meeting and
intends to appear in person or in proxy at such meeting to propose such
business; and (iv) any material interest of the stockholder in such business.
Amendment of the Certificate and Bylaws. Under the Delaware Law, the
stockholders have the power to adopt, amend or repeal bylaws; however, the
certificate of incorporation may confer such power upon the board of directors,
although in doing so it may not divest the stockholders of their power to adopt,
amend or repeal the bylaws. The Certificate provides that the Board of Directors
is authorized to adopt, repeal, alter, and amend the Bylaws. The Certificate
also contains a supermajority (75%) voting requirement for adoption, alteration,
or repeal of, or amendment to, the Bylaws by the stockholders.
In addition to the supermajority vote required to amend the Bylaws,
the Certificate provides in Article XI that Article XI and the following
provisions of the Certificate may be amended or repealed only by the affirmative
vote of the holders of at least 75% of the votes entitled to be cast in an
election by the holders of all the then outstanding capital stock of the
Company: (i) Article VI, which limits or eliminates the monetary liability of
directors for a breach of their fiduciary duty in certain circumstances; (ii)
Article VII, which provides that elections of directors need not be by written
ballot unless the Bylaws so provide; (iii) Article VIII, which allows the Board
of Directors to amend or repeal any provision of the Bylaws and requires the
affirmative vote of 75% of the stockholders for the stockholders to adopt,
amend, alter or repeal the Bylaws; (iv) Article IX, which eliminates the ability
of stockholders to take action by written consent; and (v) Article X, which
provides that only the Board of Directors can call special meetings of
stockholders.
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The Delaware Law provides generally that a corporation's certificate of
incorporation may be amended by a vote of stockholders holding a majority of the
outstanding stock. Where the certificate of incorporation requires a
supermajority vote with respect to a particular matter, however, the same
supermajority vote is required to amend such supermajority voting requirement of
the certificate of incorporation. Therefore, both the Delaware Law and the
Certificate provide that in order to amend or repeal the provisions in the
Certificate which require the affirmative vote of the holders of not less than
75% of the then outstanding common stock, the same 75% vote will be necessary to
amend such provisions.
Certain Provisions of Delaware Law
Certain Business Combinations. Under Section 203 of the Delaware Law
("Section 203") certain "business combinations" with "interested stockholders"
of Delaware corporations are subject to a three-year moratorium unless specified
conditions are met. Section 203 prohibits certain mergers, consolidations, sales
of assets and other transactions with an "interested stockholder" (generally a
15% stockholder or group of stockholders) for three years following the date the
stockholder became an interested stockholder. This prohibition on business
combinations is subject to certain exceptions, the most significant of which are
that the prohibition does not apply if: (i) the business combination or
transaction in which the stockholder becomes an interested stockholder is
approved by the corporation's board of directors prior to the stockholder
becoming an interested stockholder; (ii) the business combination is with an
interested stockholder who became an interested stockholder in a transaction
whereby he acquired 85% of the corporation's voting stock, excluding shares held
by directors who are also officers and certain employee stock plans; or (iii)
the business combination is approved by the corporation's board of directors and
authorized at a meeting by the affirmative vote of at least 66_% of the
outstanding voting stock which is not owned by the interested stockholder.
Section 203 only applies to Delaware corporations which have a class
of voting stock that is listed on a national securities exchange, authorized for
quotation on the Nasdaq Stock Market, or held of record by more than 2,000
stockholders. Because the Common Stock is presently listed on the Nasdaq Stock
Market, it is anticipated that Section 203 will be applicable to the Company. A
Delaware corporation may elect not to be governed by Section 203 by including a
provision to that effect in its certificate of incorporation or bylaws. The
Certificate does not contain any such provision and, accordingly, the Company
believes it will be subject to the provisions of Section 203.
Item 2. Exhibits
Exhibit No. Description
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3.1 Certificate of Incorporation of the Company (1)
3.2 By-Laws of the Company (2)
4.1 Form of certificate representing shares of
Common Stock of the Company
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(1) Incorporated by reference to Exhibit B to the Company's 1998 Definitive
Proxy Statement as filed with the Commission on April 24, 1998.
(2) Incorporated by reference to Exhibit C to the Company's 1998 Definitive
Proxy Statement as filed with the Commission on April 24, 1998.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized.
JUST FOR FEET, INC.
By: /s/ Eric L. Tyra
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Name: Eric L. Tyra
Title: Chief Financial Officer
Date: February 25, 1999
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Exhibit Index
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Exhibit No. Description
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3.1 Certificate of Incorporation of the Company (1)
3.2 By-Laws of the Company (2)
4.1 Form of certificate representing shares of Common
Stock of the Company
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(1) Incorporated by reference to Exhibit B to the Company's 1998 Definitive
Proxy Statement as filed with the Commission on April 24, 1998.
(2) Incorporated by reference to Exhibit C to the Company's 1998 Definitive
Proxy Statement as filed with the Commission on April 24, 1998.
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EXHIBIT 4.1
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<CAPTION>
<S><C>
COMMON STOCK COMMON STOCK
JUST FOR FEET
Just For Feet, Inc. SEE REVERSE FOR
CERTAIN DEFINITIONS
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFIES THAT CUSIP 48213P106
SPECIMEN
FULLY PAID AND NONASSESSABLE SHARES OF THE PAR VALUE OF $.0001 PER SHARE EACH OF THE COMMON STOCK of JUST FOR FEET, INC.,
transferable on the books of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this
Certificate properly endorsed. This Certificate and the shares represented hereby are issued and shall be held subject to all
provisions of the Corporation's Certificate of Incorporation and By-laws and any amendments thereto, copies of which are on
file with the Transfer Agent, to all provisions of which the holder hereof by acceptance of this Certificate assents. This
Certificate is not valid until countersigned by the Transfer Agent.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers.
DATED:
SPECIMEN SPECIMEN
Just For Feet, Inc.
Scott Wynne CORPORATE SEAL Harold Ruttenberg
Secretary DELAWARE President
Countersigned:
AmSouth Bank
Transfer Agent Registrar
By _____________________________
Authorized Signature
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