As filed with the Securities and Exchange Commission on August 12, 2002
Registration No. 333-24903
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 company 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. 1996 Equity Compensation Plan
(Full title of the plan)
ROBERT J. LICHTENSTEIN
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
(Name and address of agent for service)
215-963-5000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum Amount of
Title of securities Amount to be Offering price Aggregate registration
to be registered Registered (1) per share (2) Offering price (2) fee (3)
Common Stock,
$.10 par value 750,000 $1.66 $1,245,000 $114.54
(1) This Registration Statement covers 750,000 shares of the Registrant's
Common Stock which may be offered or sold pursuant to the Registrant's
1996 Equity Compensation Plan. This Registration Statement also relates
to an indeterminate number of shares of Common Stock of the Registrant
which may be issued upon stock splits, stock dividends, or similar
transactions in accordance with Rule 416.
(2) Estimated pursuant to Rule 457(c) and (h) solely for the purpose of
calculating the registration fee, based upon the average high and low
August 7, 2002 sales prices of the Registrant's Common Stock.
(3) The registration fee of $114.54 is available in account with the Securities
and Exchange Commission as of the filing date.
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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 U.S. Securities and Exchange
Commission (the "Commission") by Uni-Marts, Inc. (the "Company") pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this Form S-8 Registration Statement (the
"Registration Statement") and made a part hereof:
1. The Company's Annual Report on Form 10-K/A filed on February
6, 2002 (the "2002 10-K");
2. The Company's Quarterly Reports on Form 10-Q filed on February
15, 2002 and May 20, 2002;
3. The Company's Current Reports on Form 8-K or 8-K/A filed on
February 14, 2002, March 1, 2002, and April 5, 2002.
All documents and reports filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d)of the 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 herein and to be a part hereof from the date of
filing of such documents or reports. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration Statement to
the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
shall not be deemed to constitute a part of the Registration Statement except
as so modified and any statement so superseded shall not be deemed to
constitute a part of this Registration Statement.
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
adjudged 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 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
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Item 8. Exhibits.
--------
Exhibit Numbers Exhibit
-------------------------------------------------------------------
5 Opinion of Morgan, Lewis & Bockius, LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Morgan, Lewis & Bockius, LLP
(included in its opinion filed as exhibit
5 hereto)
99 Uni-Marts, Inc. 1996 Equity Compensation Plan
(incorporated by reference to Appendix D to the
Company's Definitive Proxy Statement for the
Annual Meeting of Stockholders held on
February 21, 2002, filed on January 25, 2002)
Item 9. Undertakings.
------------
The undersigned 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;
(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; and
(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 subparagraphs (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the information required to be
included in a post-effective amendment by those subparagraphs is
contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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; and
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered that
remain unsold at the termination of the offering.
The undersigned company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this 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 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public
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policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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 Company 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 Securities 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
Company 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, on August 12, 2002.
UNI-MARTS, INC.
/s/ Henry D. Sahakian
By: ------------------------
Name: Henry D. Sahakian
Title: Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed below as of the
12th day of August, 2002 by or on behalf of the following persons in the
capacities indicated below.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints N. Gregory Petrick, attorney for him or her
and in his or her name and on his or her behalf to sign the Registration
Statement on Form S-8, and any amendments thereto, of Uni-Marts, Inc. to be
filed with the Securities and Exchange Commission under the Securities Act
of 1933, with respect to the issue and sale of shares of Common Stock of
Uni-Marts, Inc. pursuant to the provisions of the Registrant's Uni-Marts,
Inc. and generally to do and perform all things necessary to be done in the
premises as fully and effectually in all respects as I could do if
personally present.
Signature Title
--------- -----
/s/ Henry D. Sahakian
------------------------- Chairman of the Board
Henry D. Sahakian (Principal Executive Officer)
/s/ N. Gregory Petrick Executive Vice President and
------------------------- Chief Financial Officer
N. Gregory Petrick (Principal Accounting Officer
(Principal Financial Officer)
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/s/ Henry D. Sahakian Director August 12, 2002
-------------------------
Henry D. Sahakian
/s/ M. Michael Arjmand Director August 12, 2002
-------------------------
M. Michael Arjmand
/s/ Herbert C. Graves Director August 12, 2002
-------------------------
Herbert C. Graves
/s/ Stephen B. Krumholz Director August 12, 2002
-------------------------
Stephen B. Krumholz
/s/ Jack G. Najarian Director August 12, 2002
-------------------------
Jack G. Najarian
/s/ Frank R. Orloski, Sr. Director August 12, 2002
-------------------------
Frank R. Orloski, Sr.
Director
-------------------------
Anthony S. Regensburg
/s/ Daniel D. Sahakian Director August 12, 2002
-------------------------
Daniel D. Sahakian
/s/ Gerold C. Shea Director August 12, 2002
-------------------------
Gerold C. Shea
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INDEX TO EXHIBITS
Exhibit Numbers Exhibit
-------------------------------------------------------------------
5 Opinion of Morgan, Lewis & Bockius, LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Morgan, Lewis & Bockius, LLP
(included in its opinion filed as exhibit
5 hereto)
99 Uni-Marts, Inc. 1996 Equity Compensation Plan
(incorporated by reference to Appendix D to the
Company's Definitive Proxy Statement for the
Annual Meeting of Stockholders held on
February 21, 2002, filed on January 25, 2002)
8