<PAGE> 1
As filed with the Securities and Exchange Commission on April 29, 1994
Registration No. _______
____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
TRAK AUTO CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 52-1281465
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3300 75th Avenue 20785
Landover, Maryland (Zip Code)
(Address of Principal
Executive Offices)
TRAK AUTO CORPORATION 1993 STOCK OPTION PLAN
(Full title of the plan)
R. Keith Green Michael R. Klein, Esq.
President Wilmer, Cutler & Pickering
Trak Auto Corporation 2445 M Street, N.W.
3300 75th Avenue Washington, D.C. 20037
Landover, Maryland 20785 (202) 663-6125
(202) 429-9888 (Copy to)
(Name and address of agent
for service)
(301) 731-1200
(Telephone number, including area
code, of agent for service)
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<TABLE>
Calculation of Registration Fee
<S> <C> <C> <C> <C>
Proposed Proposed
Amount maximum maximum
Title of securities to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
Common Stock 1,250,000<F1> $12.39<F2> $15,483,086.25<F2> $5,339.00
$0.01 par value
<FN>
<F1> The Trak Auto Books Corporation 1993 Stock Option Plan (the "Plan") authorizes the issuance of a maximum
of 1,250,000 shares of common stock, $0.01 par value ("Common Stock"), all of which are being registered
hereunder. Of the 1,250,000 shares authorized to be issued under the Plan, as of January 29, 1994,
114,690 were subject to outstanding options granted under the Plan and 1,135,310 were available for
future grants thereunder.
<F2> Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(h). The
proposed maximum aggregate offering price is the per share weighted average exercise price of $12.50
with respect to the 114,690 options previously granted under the Plan, plus $14,049,461.25, the average
of the high and low sales prices of the Common Stock in the over-the-counter market, as reported on the
National Association of Securities Dealers Automated Quotation System, on April 22, 1994 (which were
$12-3/8 and $12-3/8, respectively) with respect to the remaining options available for future grants
under the Plan.
</TABLE>
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). In accordance
with the instructions to Part I of Form S-8, such documents will not be filed
with the Commission either as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Rule 424.
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 (the "Commission") by Trak Auto Corporation (the "Company"),
Commission File No. 0-12202, are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended January 29, 1994, filed with the Commission on
April 29, 1994.
(b) The description of the Common Stock contained in the
Company's Form 8-A Registration Statement, filed with the Commission
on May 30, 1984, and all amendments and reports subsequently filed
for the purpose of updating that description.
In addition to the foregoing documents, all documents subsequently
filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), 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 the filing of
such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference in this Registration Statement 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
<PAGE> 4
reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "GCL")
provides that a business corporation may indemnify directors and officers
against liabilities they may incur in such capacities provided certain
standards are met, including good faith and the reasonable belief that the
particular action was in, or not opposed to, the best interest of the
corporation. Subsection (a) of Section 145 of the GCL empowers a corporation
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 corporation), by reason of the fact that he
is or was a director, officer, employee or agent of the corporation or is or
was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or enterprise, against expenses
(including attorney's 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 corporation
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe that his conduct was unlawful.
Subsection (b) of Section 145 of the GCL empowers a corporation 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 or suit by or in the
right of the corporation to procure a judgment in its favor, by reason of the
fact that such person acted in any of the capacities set forth above, against
expenses (including attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of such action or suit if he
acted under standards similar to those set forth above, except that 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 corporation,
unless and only to the extent that the Delaware Court of Chancery or the
court in which such action or suit was brought shall determine that, despite
the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to be indemnified for
such expenses which the court shall deem proper.
<PAGE> 5
Section 145 of the GCL further provides that, among other things, to
the extent that a director or officer of a corporation has been successful in
the defense of any action, suit or proceeding referred to in Subsections (a)
and (b) of Section 145, or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of
any other rights to which the indemnified party may be entitled; and that a
corporation is empowered to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify
against such liability under Section 145.
The Certificate of Incorporation and Bylaws of the Company provide
for the mandatory indemnification of directors and officers to the full
extent permitted by law.
As permitted by Section 102(b)(7) of the GCL, the Certificate of
Incorporation of the Company also provides that a director shall not be
personally liable to the Company or its stockholders for monetary damages for
breach of his or her fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the GCL (dealing with unlawful dividends or unlawful stock purchases or
redemptions), or (iv) for any transaction from which the director derived an
improper personal benefit.
<PAGE> 6
Item 8. Exhibits.
4.1 -- Trak Auto Corporation 1993 Stock Option Plan (incorporated
by reference from Exhibit A to the Company's Proxy Statement
with respect to its Annual Meeting of Shareholders on
June 30, 1993, as filed with the Commission on June 16,
1993).
4.2 -- Article FOURTH of Certificate of Incorporation of Trak Auto
Corporation (incorporated by reference from Exhibit 3(a) to
the Company's Annual Report on Form 10-K for the fiscal year
ended January 30, 1987, filed with the Commission on
April 24, 1987).
4.3 -- Bylaws of Trak Auto Corporation, as amended and restated as
of September 14, 1993 (incorporated by reference from
Exhibit 3(b) to the Company's Annual Report on Form 10-K for
the fiscal year ended January 29, 1994, filed with the
Commission on April 29, 1994).
5.1 -- Opinion of Wilmer, Cutler & Pickering regarding legality of
securities being registered.
24.1 -- Consent of Arthur Andersen & Co.
24.2 -- Consent of Wilmer, Cutler & Pickering (included in Exhibit
5.1).
25.1 -- Power of Attorney (included on pages 10-11).
Item 9. Undertakings.
(a) 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;
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(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 paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply to information required to be included in a post-effective
amendment by those paragraphs and which 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.
(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.
(3) 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.
(b) 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 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
<PAGE> 8
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 Securities Act of 1933 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 Securities Act of 1933 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
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Landover, State of Maryland, on
April 29, 1994.
TRAK AUTO CORPORATION
By: _____________________
R. Keith Green
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that, the undersigned directors and
officers of Trak Auto Corporation, a Delaware corporation (the
"Corporation"), hereby constitute and appoint each of R. Keith Green and Ron
Marshall, with full power of substitution, their true and lawful attorney and
agent to sign the names of the undersigned directors and officers in the
capacities indicated below to the registration statement to which this Power
of Attorney is filed as an exhibit, and all amendments (including post-
effective amendments) and supplements thereto, and all instruments or
documents filed as a part thereof or in connection therewith and to file the
same, with all exhibits thereto, and all other instruments or documents in
connection therewith, with the Securities and Exchange Commission; and each
of the undersigned hereby ratifies and confirms that all said attorney or
agent shall do or cause to be done by virtue hereof.
Signature and Title Date
________________________________________ April 29, 1994
Herbert H. Haft
Chairman of the Board and Chief Executive Officer
and Director (Principal
Executive Officer)
________________________________________ April 29, 1994
R. Keith Green
President and Director
________________________________________ April 29, 1994
Ron Marshall
Treasurer and Principal Financial
Officer
<PAGE> 11
________________________________________ April 29, 1994
David B. McGlashan
Principal Accounting Officer
________________________________________ April 29, 1994
Douglas M. Bregman
Director
________________________________________ April 29, 1994
H. Ridgely Bullock
Director
________________________________________ April 29, 1994
Ronald S. Haft
Director
________________________________________ April 29, 1994
Larry G. Schafran
Director
________________________________________ April 29, 1994
Bonita A. Wilson
Director
<PAGE> 12
Exhibit Index
Exhibit Page
4.1 -- Trak Auto Corporation 1993 Stock Option Plan --
(incorporated by reference from Exhibit A
to the Company's Proxy Statement with
respect to its Annual Meeting of
Shareholders on June 30, 1993, as filed
with the Commission on June 16, 1993).
4.2 -- Article FOURTH of Certificate of --
Incorporation of Trak Auto Corporation
(incorporated by reference from Exhibit
3(a) to the Company's Annual Report on Form
10-K for the fiscal year ended January 30,
1987, filed with the Commission on April
24, 1987).
4.3 -- Bylaws of Trak Auto Corporation, as amended --
and restated as of September 14, 1993
(incorporated by reference from Exhibit
3(b) to the Company's Annual Report on Form
10-K for the fiscal year ended January 29,
1994, filed with the Commission on April
29, 1994).
5.1 -- Opinion of Wilmer, Cutler & Pickering --
regarding legality of securities being
registered.
24.1 -- Consent of Arthur Andersen & Co. --
24.2 -- Consent of Wilmer, Cutler & Pickering --
(included in Exhibit 5.1).
25.1 -- Power of Attorney (included on pages 10-11). --
<PAGE> 13
April 28, 1994
Trak Auto Corporation
3300 75th Avenue
Landover, Maryland 20785
Ladies and Gentlemen:
We have acted as counsel to Trak Auto Corporation, a
Delaware corporation (the "Company"), in connection with the preparation by
the Company of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, for the
registration of 1,250,000 shares of common stock, $.01 par value per share
(the "Shares"), of the Company relating to the exercise of stock options
pursuant to the Trak Auto Corporation 1993 Stock Option Plan (the "Plan").
For purpose of this opinion, we have examined copies of the
following documents:
1. An executed copy of the Form S-8.
2. A copy of the prospectus for the Shares prepared in
connection with the Form S-8.
3. A copy of the Plan, as certified on April 29, 1994,
by the Secretary of the Company as then being
complete, accurate and in effect.
4. Article FOURTH of Certificate of Incorporation of
Trak Auto Corporation, as certified on April 29,
1994, by the Secretary of the Company as then being
complete, accurate and in effect.
5. Bylaws of Trak Auto Corporation, as amended and
restated as of September 14, 1993, as certified on
April 29, 1994, by the Secretary of the Company as
then being complete, accurate and in effect.
6. Resolutions of the Board of Directors of the
Company adopted by unanimous consent in lieu of a
meeting, as certified by the Secretary of the
Company on April 29, 1994 as then being complete,
accurate and in effect.
7. A resolution of the stockholders of the Company
adopted at the Annual Meeting of Shareholders on
June 30, 1993, as certified by the Secretary of
the Company on April 29, 1994 as then being
complete, accurate and in effect.
<PAGE> 14
We have not, except as specifically mentioned above, made
any independent review or investigation of the organization, existence, good
standing, assets, business or affairs of the Company, or of any other
matters. In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, and the
authenticity and conformity with the original documents of all documents
submitted to us as certified, telecopied, photostatic, or reproduced copies.
We have assumed the authenticity and accuracy of the foregoing
certifications, on which we are relying, and have made no independent
investigations thereof.
This opinion is based as to matters of law solely on the
General Corporation Law of the State of Delaware, and we express no opinion
as to any other laws, statutes, regulations or ordinances, including without
limitation any federal or state tax or securities laws or regulations. We
note that our firm only requires lawyers to be qualified to practice law in
the District of Columbia.
Based upon, subject to, and limited by the foregoing, we are
of the opinion that:
1. The issuance of the Shares upon the exercise of
options granted under the Plan has been lawfully
and duly authorized; and
2. When the Shares have been issued and delivered in
accordance with the terms of the Plan, the Shares
will be legally issued, fully paid and
nonassessable.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion. This opinion has been
prepared solely for your use in connection with the filing of the Form S-8
on the date of this letter, and should not be quoted in whole or in part or
otherwise be referred to, nor otherwise be filed with or furnished to any
governmental agency or other person or entity, without the prior written
consent of this firm.
We hereby consent to the filing of this opinion as an
exhibit to the Form S-8. Nothing herein shall be construed to cause us to
be considered "experts" within the meaning of Section 11 of the Securities
Act of 1933, as amended.
Sincerely,
Wilmer, Cutler & Pickering
By: ______________________
Thomas W. White, a Partner
<PAGE> 15
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
_________________________________________________
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports
dated April 27, 1994 included (or incorporated by reference) in Trak Auto
Corporation's Form 10-K for the year ended January 29, 1994 and to all
references to our Firm included in this registration statement.
ARTHUR ANDERSEN & CO.
Washington, D.C.
April 27, 1994
