As filed with the Securities and Exchange Commission on October 29, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
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MAIN STREET AND MAIN INCORPORATED
------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Delaware 11-2948370
- --------------------------------- ----------------------
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
5050 North 40th Street, Suite 200
Phoenix, Arizona 85018
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(Address of Principal Executive Offices) (Zip Code)
MAIN STREET AND MAIN INCORPORATED
1999 Incentive Stock Plan
---------------------------------
(Full Title of the Plan)
Bart A. Brown, Jr.
President and Chief Executive Officer
MAIN STREET AND MAIN INCORPORATED
5050 North 40th Street, Suite 200
Phoenix, Arizona 85018
(602) 852-9000
- --------------------------------------------------------------------------------
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
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This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will begin as soon as reasonably practicable after such effective date.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER SHARE PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 382,500 shares $3.315 $ 1,267,987.50 $ 352.50
Common Stock 617,500 shares 3.344(2) 2,064,920.00 574.05
--------- ------ -------------- ---------
Total 1,000,000 shares $ 3,332,907.50 $ 926.55
==============================================================================================
</TABLE>
(1) Represents 1,000,000 shares issuable under the 1999 Incentive Stock Plan.
This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1999 Incentive Stock Plan by
reason of any stock dividend, stock split, recapitalization or any other
similar transaction without receipt of consideration which results in an
increase in the number of outstanding shares of Common Stock of Main Street
and Main Incorporated.
(2) Calculated for purposes of this offering under Rule 457(h) and Rule 457(c)
of the Securities Act of 1933, as amended, using the average of the high
and low sales prices for the Common Stock of Main Street and Main
Incorporated as reported on the Nasdaq National Market on October 26, 1999.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Main Street and Main Incorporated (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or the latest prospectus filed pursuant to the
Securities Act of 1933, as amended (the "Securities Act") that
contains audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed; and
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the documents
referred to in (a) above; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 0-18668)
filed with the Commission on June 29, 1990.
All reports and definitive proxy or information statements filed pursuant
to Sections 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 into this Registration Statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation and Bylaws of the Registrant
provide that the Registrant will indemnify and advance expenses, to the fullest
extent permitted by the Delaware General Corporation Law, to each person who is
or was a director or officer of the Registrant, or who serves or served any
other enterprise or organization at the request of the Registrant (an
"Indemnitee").
Under Delaware law, to the extent that an Indemnitee is successful on the
merits in defense of a suit or proceeding brought against him or her by reason
of the fact that he or she is or was a director, officer, or agent of the
Registrant, or serves or served any other enterprise or organization at the
request of the Registrant, the Registrant shall indemnify him or her against
expenses (including attorneys' fees) actually and reasonably incurred in
connection with such action.
If unsuccessful in defense of a third-party civil suit or criminal suit, or
if such a suit is settled, an Indemnitee may be indemnified under Delaware law
against both (i) expenses, including attorneys' fees, and (ii) judgments, fines,
and amounts paid in settlement if he or she acted in good faith and in a manner
he or she
II-1
<PAGE>
reasonably believed to be in, or not opposed to, the best interests of the
Registrant, and, with respect to any criminal action, had no reasonable cause to
believe his or her conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of the
Registrant, where the suit is settled, an Indemnitee may be indemnified under
Delaware law only against expenses (including attorneys' fees) actually and
reasonably incurred in the defense or settlement of the suit if he or she acted
in good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the Registrant except that if the Indemnitee
is adjudged to be liable for negligence or misconduct in the performance of his
or her duty to the Registrant, he or she cannot be made whole even for expenses
unless a court determines that he or she is fully and reasonably entitled to
indemnification for such expenses.
Also under Delaware law, expenses incurred by an officer or director in
defending a civil or criminal action, suit, or proceeding may be paid by the
Registrant in advance of the final disposition of the suit, action, or
proceeding upon receipt of an undertaking by or on behalf of the officer or
director to repay such amount if it is ultimately determined that he or she is
not entitled to be indemnified by the Registrant. The Registrant may also
advance expenses incurred by other employees and agents of the Registrant upon
such terms and conditions, if any, that the Board of Directors of the Registrant
deems appropriate.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Exhibit
------ -------
5 Opinion and consent of Greenberg Traurig, a partnership of
limited entities.
10.28 1999 Incentive Stock Plan
23.1 Consent of Greenberg Traurig is contained in Exhibit 5
23.2 Consent of Independent Certified Public Accountants -
Arthur Andersen LLP
24 Power of Attorney (included on page II.4 of this Registration
Statement)
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;
(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. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement.
II-2
<PAGE>
(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 clauses (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference into 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 into 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 or 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 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 and will be governed by the final adjudication of such issue.
II-3
<PAGE>
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 Phoenix, State of Arizona, on this 22nd day of
October, 1999.
MAIN STREET AND MAIN INCORPORATED
By: /s/ Bart A. Brown, Jr.
--------------------------------------
Bart A. Brown, Jr.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints jointly and severally, Bart A. Brown, Jr.
and James C. Yeager and each of them, as his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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:
Signature Position Date
--------- -------- ----
/s/ John F. Antioco Chairman of the Board October 22, 1999
- -----------------------
John F. Antioco
/s/ Bart A. Brown, Jr. President, Chief Executive October 22, 1999
- ----------------------- Officer, and Director (Principal
Bart A. Brown, Jr. Executive Officer)
/s/ William G. Shrader Executive Vice President, October 22, 1999
- ----------------------- Chief Operating Officer,
William G. Shrader and Director
/s/ James Yeager Vice President-Finance (Principal October 22, 1999
- ----------------------- Financial and Accounting Officer),
James Yeager Secretary and Treasurer
/s/ Jane Evans Director October 22, 1999
- -----------------------
Jane Evans
/s/ John C. Metz Director October 22, 1999
- -----------------------
John C. Metz
/s/ Steven A. Sherman Director October 22, 1999
- -----------------------
Steven A. Sherman
II-4
[LETTERHEAD OF GREENBERG TRAURIG]
October 25, 1999
Main Street and Main Incorporated
5050 North 40th Street, Suite 200
Phoenix, Arizona 85018
Re: Registration Statement On Form S-8
Main Street and Main Incorporated
Gentlemen:
As legal counsel to Main Street and Main Incorporated, a Delaware
corporation (the "Company"), we have assisted in the preparation of the
Company's Registration Statement on Form S-8 (the "Registration Statement") to
be filed with the Securities and Exchange Commission on or about October 29,
1999 in connection with the registration under the Securities Act of 1933, as
amended, of 1,000,000 shares of the Company's common stock, par value $0.001 per
share, (the "Shares") issuable pursuant to the Company's 1999 Incentive Stock
Plan (the "Plan"). The facts, as we understand them, are set forth in the
Registration Statement.
With respect to the opinion set forth below, we have examined originals,
certified copies, or copies otherwise identified to our satisfaction as being
true copies, only of the following:
A. The Restated Certificate of Incorporation of the Company, as filed with
the Secretary of State of the State of Delaware, as amended through the date
hereof;
B. The Bylaws of the Company, as amended through the date hereof;
<PAGE>
Main Street and Main Incorporated
October 25, 1999
Page Two
C. Various resolutions of the Board of Directors of the Company authorizing
the issuance of the Shares; and
D. The Registration Statement.
Subject to the assumptions that (i) the documents and signatures examined
by us are genuine and authentic and (ii) the persons executing the documents
examined by us have the legal capacity to execute such documents, and subject to
the further limitations and qualifications set forth below, it is our opinion
that the Shares, when issued and sold in accordance with the terms of the Plan,
will be duly authorized, validly issued, fully paid and nonassessable.
Please be advised that we are members of the State Bar of Arizona, and our
opinion is limited to the legality of matters under federal securities laws and
the General Corporation Laws of the State of Delaware. Further, our opinion is
based solely upon existing laws, rules and regulations, and we undertake no
obligation to advise you of any changes that may be brought to our attention
after the date hereof.
We hereby expressly consent to any reference to our firm in the
Registration Statement, inclusion of this opinion as an exhibit to the
Registration Statement, and to the filing of this opinion with any other
appropriate governmental agency.
Very truly yours,
/s/ Greenberg Traurig, a partnership of limited
liability entities
MAIN STREET AND MAIN INCORPORATED
1999 INCENTIVE STOCK PLAN
ADOPTED BY THE BOARD OF DIRECTORS AS OF FEBRUARY 19, 1999
APPROVED BY THE STOCKHOLDERS ON JUNE 11, 1999
1. PURPOSE. The purpose of this 1999 Incentive Stock Plan (the "Plan") is
to attract, retain and motivate employees, directors, and independent
contractors by providing them with the opportunity to acquire a proprietary
interest in MAIN STREET AND MAIN INCORPORATED, a Delaware corporation (the
"Company") and to link their interest and efforts to the long-term interests of
the Company's shareholders.
2. PLAN ADMINISTRATION
2.1 IN GENERAL. The Plan shall be administered by the Company's Board
of Directors (the "Board"). Except for the power to amend the Plan as provided
in SECTION 11, the Board, in its sole discretion, may delegate all or any
portion of its authority and duties under the Plan to one or more committees
appointed by the Board and consisting of at least one member of the Board, under
such conditions and limitations as the Board may from time to time establish.
The Board and/or any committee that has been delegated the authority to
administer the Plan shall be referred to as the "Plan Administrator." Except as
otherwise explicitly set forth in the Plan, the Plan Administrator shall have
the authority, in its discretion, to determine all matters relating to awards
(as described in SECTION 5) under the Plan, including the selection of the
individuals to be granted awards, the type of awards, the number of shares of
the Company's common stock ("Common Stock") subject to an award, vesting
conditions, and any and all other terms, conditions, restrictions and
limitations, if any, of an award. All decisions made by the Plan Administrator
pursuant to the Plan and related orders and resolutions shall be final and
conclusive.
2.2 RULE 16B-3 AND CODE SECTION 162(M). Notwithstanding any provision
of this Plan to the contrary, only the Board or a committee composed of two or
more "Non-Employee Directors" may make determinations regarding grants of awards
to officers, directors, and 10% shareholders of the Company. For purposes of
this Plan, the term "Non-Employee Directors" shall have the meaning set forth in
Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended
(the "1934 Act"). The Plan Administrator shall have the authority and discretion
to determine the extent to which awards will conform to the requirements of
Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code") and
to take such action, establish such procedures, and impose such restrictions as
the Plan Administrator determines to be necessary or appropriate to conform to
such requirements.
2.3 OTHER PLANS. The Plan Administrator also shall have authority to
grant awards as an alternative to or as the form of payment for grants or rights
earned or due under other compensation plans or arrangements of the Company,
including the plan of any entity acquired by the Company.
3. ELIGIBILITY. Any employee of the Company shall be eligible to receive
any award under the Plan. Directors who are not employees, proposed directors,
proposed employees and independent contractors shall be eligible to receive
awards other than Incentive Stock Options (as defined in SECTION 5.2). For
purposes of this SECTION 3, the "Company," with respect to all awards under the
Plan, other than Incentive Stock Options, includes any entity that is directly
or indirectly controlled by the Company or any entity in which the Company has a
significant equity interest, as determined by the Plan Administrator. With
respect to Incentive Stock Options, the "Company" includes any parent or
subsidiary of the Company as defined in Section 424 of the Code.
4. SHARES SUBJECT TO THE PLAN
4.1 NUMBER AND SOURCE. The shares offered under the Plan shall be
shares of Common Stock and may be unissued shares or shares now held or
subsequently acquired by the Company as treasury shares, as the Plan
Administrator may from time to time determine. Subject to adjustment as provided
in SECTION 4.3, the aggregate number of shares that may be issued under the Plan
shall not exceed 1,000,000 shares. The aggregate
<PAGE>
number of shares that may be covered by awards granted to any one individual in
any year shall not exceed 15% of the total number of shares that may be issued
under the Plan.
4.2 SHARES AVAILABLE. Any shares subject to an award granted under the
Plan that is forfeited, terminated or canceled, or any shares that do not vest,
shall again be available for the granting of awards under the Plan. If a stock
appreciation right is settled in cash, the shares covered by such award shall
remain available for the granting of other awards. The payment of cash dividends
and dividend equivalents paid in cash in conjunction with outstanding awards
shall not be counted against the shares available for issuance.
4.3 ADJUSTMENT OF SHARES AVAILABLE. The aggregate number and type of
shares available for awards under the Plan, the maximum number and type of
shares that may be subject to awards to any individual under the Plan, the
number and type of shares covered by each outstanding award, and the exercise
price per share (but not the total price) for stock options, stock appreciation
rights or similar awards outstanding under the Plan shall all be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from any split-up, combination or exchange of shares,
consolidation, spin-off or recapitalization of shares or any like capital
adjustment or the payment of any stock dividend.
4.4 TRANSFER OF CONTROL. In the event of a Transfer of Control of the
Company (as defined below), the surviving, continuing, successor or purchasing
corporation or parent corporation thereof, as the case may be (the "Acquiring
Corporation") shall either assume the Company's rights and obligations under
outstanding awards or substitute for outstanding awards substantially equivalent
awards for the Acquiring Corporation's stock. In the event the Acquiring
Corporation elects not to assume or substitute for such outstanding awards in
connection with the Transfer of Control, the Board may, in its discretion,
provide that any unexercisable and/or unvested portion of the outstanding awards
shall be immediately exercisable and vested in full on or before the date of the
Transfer of Control. The exercise and/or vesting of any award that is
permissible solely by reason of this SECTION 4.4 shall be conditioned upon the
consummation of the Transfer of Control. Any awards that are neither (i) assumed
or substituted for by the Acquiring Corporation in connection with the Transfer
of Control nor (ii) exercised on or before the date of the Transfer of Control
shall terminate and cease to be outstanding effective as of the date of the
Transfer of Control. Unless otherwise determined by the Board, a "Transfer of
Control" shall be deemed to have occurred in the event of any of the following:
(a) the direct or indirect sale or exchange by the shareholders of the Company
of all or substantially all of the stock of the Company if the shareholders of
the Company before such sale or exchange do not retain, directly or indirectly,
at least a majority of the beneficial interest in the voting stock of the
Company after such sale or exchange; (b) a merger or consolidation if the
shareholders of the Company before such merger or consolidation do not retain,
directly or indirectly, at least a majority of the beneficial interest in the
voting stock of the Company after such merger or consolidation (regardless of
whether the Company is the surviving corporation); (c) the sale, exchange or
transfer of all or substantially all of the assets of the Company; or (d) a
liquidation or dissolution of the Company.
5. AWARDS
5.1 TYPES OF AWARDS. Awards granted under this Plan may include, but
are not limited to, Incentive Stock Options or Nonqualified Stock Options (as
defined in SECTION 5.2), stock appreciation rights or restricted stock awards.
Such awards may be granted either alone, in addition to, or in tandem with any
other type of award granted under the Plan.
5.2 STOCK OPTIONS. The Plan Administrator may grant stock options,
designated as "Incentive Stock Options," which comply with the provisions of
Section 422 of the Code or any successor statutory provision, or "Nonqualified
Stock Options" that do not comply with the provisions of Section 422 of the Code
or any successor statutory provision. The price for which shares may be
purchased upon exercise of a particular option shall be determined by the Plan
Administrator; however, the exercise price of an Incentive Stock Option shall
not be less than 100% of the Fair Market Value (as defined below) of such shares
on the date such option is granted (110% of the Fair Market Value if options are
intended to be Incentive Stock Options and are granted to a shareholder who at
the time the option is granted owns or is deemed to own stock possessing more
than 10% of the total combined voting power of all classes of stock of the
Company or of any parent or subsidiary of the Company). For purposes of the
Plan, "Fair Market Value" as to a particular day shall be the per-share closing
price for the Common Stock as reported for the prior trading day in THE WALL
STREET JOURNAL or in such other source as the Plan Administrator deems
2
<PAGE>
reliable. The Plan Administrator shall set the term of each stock option, but no
Incentive Stock Option shall be exercisable more than 10 years after the date
such option is granted and, to the extent the aggregate Fair Market Value
(determined as of the date the option is granted) of Common Stock with respect
to which Incentive Stock Options granted to a particular individual become
exercisable for the first time during any calendar year (under the Plan and all
other stock option plans of the Company) exceeds $100,000 (or such corresponding
amount as may be set by the Code) such options shall be treated as Nonqualified
Stock Options. An optionholder and the Plan Administrator can agree at any time
to convert an Incentive Stock Option to a Nonqualified Stock Option.
5.3 STOCK APPRECIATION RIGHTS. The Plan Administrator may grant stock
appreciation rights, either in tandem with a stock option granted under the Plan
or with respect to a number of shares for which an option is not granted. A
stock appreciation right shall entitle the holder to receive, with respect to
each share of stock as to which the right is exercised, payment in an amount
equal to the excess of the share's Fair Market Value on the date the right is
exercised over its Fair Market Value on the date the right was granted. Such
payment may be made in cash or in shares of Common Stock valued at Fair Market
Value as of the date of the surrender, or partly in cash and partly in shares of
Common Stock, as determined by the Plan Administrator in its sole discretion.
The Plan Administrator may establish a maximum appreciation value payable for
stock appreciation rights.
5.4 RESTRICTED STOCK AWARDS. The Plan Administrator may grant
restricted stock awards under the Plan in Common Stock or denominated in units
of Common Stock. The Plan Administrator, in its discretion, may make such awards
subject to conditions and restrictions, as set forth in the instrument
evidencing the award, which may be based on continuous service with the Company
or the attainment of certain performance goals related to profits, profit
growth, profit-related return ratios, cash flow or shareholder returns, where
such goals may be stated in absolute terms or relative to comparison companies
or indices or to be achieved during a period of time. The Plan Administrator may
choose, at the time of granting a restricted stock award or at any time
thereafter up to the time of payment of the award, to include as part of such
award an entitlement to receive dividends or dividend equivalents, subject to
such terms as the Plan Administrator may establish. All dividends or dividend
equivalents that are not paid currently may, in the Plan Administrator's sole
discretion, accrue interest and be paid to the participant if, when, and to the
extent such award is paid.
5.5 PAYMENT; DEFERRAL. Awards granted under the Plan may be settled
through cash payments, the delivery of Common Stock (valued at Fair Market
Value) or the granting of awards or combinations thereof as the Plan
Administrator shall determine. Any award settlement, including payment
deferrals, may be subject to such conditions, restrictions, and contingencies as
the Plan Administrator shall determine. The Plan Administrator may permit or
require the deferral of any award payment, subject to such rules and procedures
as it may establish, which may include provisions for the payment or crediting
of interest, or dividend equivalents, including converting such credits to
deferred stock unit equivalents.
5.6 INDIVIDUAL AWARD AGREEMENTS. Stock Options shall and other awards
may be evidenced by agreements between the Company and the recipient in such
form and content as the Plan Administrator from time to time approves, which
agreements shall substantially comply with and be subject to the terms of the
Plan. Such individual agreements may contain such provisions or conditions as
the Plan Administrator deems necessary or appropriate to effectuate the sense
and purpose of the Plan and may be amended from time to time in accordance with
the terms thereof.
6. AWARD EXERCISE
6.1 PRECONDITION TO STOCK ISSUANCE. No shares shall be delivered
pursuant to the exercise of any stock option or stock appreciation right, in
whole or in part, until qualified for delivery under such securities laws and
regulations as may be deemed by the Plan Administrator to be applicable thereto
and until, in the case of the exercise of an option, payment in full of the
option price thereof (in cash or stock as provided in SECTION 6.3) is received
by the Company. No holder of an option or stock appreciation right, or any legal
representative, legatee or distributee shall be or be deemed to be a holder of
any shares subject to such option or right unless and until such option or right
is exercised, the exercise price is paid, and such shares are issued.
3
<PAGE>
6.2 NO FRACTIONAL SHARES. No stock option may at any time be exercised
with respect to a fractional share. No fractional share shall be issued with
respect to a stock appreciation right; however, a fractional stock appreciation
right may be exercised for cash.
6.3 FORM OF PAYMENT. An optionee may exercise a stock option using as
the form of payment (a) cash or cash equivalent, (b) stock-for-stock payment (as
described below), (c) cashless exercises, (d) any combination of the above, or
(e) such other means as the Plan Administrator may approve. Any optionee who
owns Common Stock may use such shares as a form of payment to exercise stock
options granted under the Plan. The Plan Administrator, in its discretion, may
restrict or rescind this right by notice to optionees. A stock option may be
exercised in such manner only by tendering (actually or by attestation) to the
Company whole shares of Common Stock having a Fair Market Value equal to or less
than the exercise price. If an option is exercised by surrender of shares having
a Fair Market Value less than the exercise price, the optionholder must pay the
difference in cash.
7. TRANSFERABILITY. Any Incentive Stock Option granted under the Plan
shall, during the recipient's lifetime, be exercisable only by such recipient,
and shall not be assignable or transferable by such recipient other than by will
or the laws of descent and distribution. Except as specifically allowed by the
Plan Administrator, any other award under the Plan and any of the rights and
privileges conferred thereby shall not be assignable or transferable by the
recipient other than by will or the laws of descent and distribution and such
award shall be exercisable during the recipient's lifetime only by the
recipient.
8. WITHHOLDING TAXES; OTHER DEDUCTIONS. The Company shall have the right to
deduct from any settlement of an award granted under the Plan, including the
delivery or vesting of shares, (a) an amount of cash or shares of Common Stock
having a value sufficient to cover withholding as required by law for any
federal, state or local taxes, and (b) any amounts due from the recipient of
such award to the Company or to any parent or subsidiary of the Company or to
take such other action as may be necessary to satisfy any such withholding or
other obligations, including withholding from any other cash amounts due or to
become due from the Company to such recipient an amount equal to such taxes or
obligations. The Plan Administrator also may, in its discretion, permit the
holder of an award to deliver to the Company, at the time the award is exercised
or vests, one or more shares of Common Stock previously acquired by such
individual (other than pursuant to the transaction triggering the taxes) with an
aggregate Fair Market Value up to or equal to (but not in excess of) the amount
of the taxes incurred in connection with such exercise or vesting.
9. TERMINATION OF SERVICES. The terms and conditions under which an award
may be exercised following termination of a recipient's employment, directorship
or independent contractor relationship with the Company shall be determined by
the Plan Administrator; provided, however, that Incentive Stock Options shall
not be exercisable at any time after the earliest of the date that is (a) three
months after termination of employment, unless due to death or Disability (as
defined in Section 22(e)(3) of the Code); (b) one year after termination of
employment due to Disability; or (c) ten years after the date of grant (five
years if granted to a shareholder who at the time the option is granted owns or
is deemed to own stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company or of any parent or subsidiary of
the Company).
10. TERM OF THE PLAN. The Plan shall become effective as of the date of
adoption by the Board and shall remain in full force and effect through the date
that is ten years thereafter, unless sooner terminated by the Board. After the
Plan is terminated, no future awards may be granted, but awards previously
granted shall remain outstanding in accordance with their applicable terms and
conditions and the Plan's terms and conditions.
11. PLAN AMENDMENT; BIFURCATION OF THE PLAN. The Board may amend, suspend
or terminate the Plan at any time; provided that no such amendment shall be made
without the approval of the Company's shareholders (a) that would increase the
number of shares available for issuance under the Plan (other than in accordance
with SECTION 4.3), or (b) if such approval is required (i) to comply with
Section 422 of the Code with respect to Incentive Stock Options, or (ii) for
purposes of Section 162(m) of the Code. Notwithstanding any provision of this
Plan to the contrary, the Board, in its sole discretion, may bifurcate the Plan
so as to restrict, limit or condition the use of any provision of the Plan to
participants who are officers, directors or shareholders subject to Section 16
of the 1934 Act without so restricting, limiting or conditioning the Plan with
respect to other participants.
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<PAGE>
12. PLAN NOT EXCLUSIVE. This Plan is not intended to be the exclusive means
by which the Company may issue awards to acquire its Common Stock.
13. GOVERNING LAW. The Plan shall be governed by, and all questions arising
hereunder shall be determined in accordance with, the laws of the State of
Delaware.
14. APPROVAL BY SHAREHOLDERS. This Plan shall be submitted to the
shareholders of the Company for their approval at a regular or special meeting
to be held within 12 months after the adoption of this Plan by the Board.
Shareholder approval shall be evidenced by the affirmative vote of the holders
of a majority of the shares of the Company's Common Stock present in person or
by proxy and voting at the meeting. If the shareholders decline to approve this
Plan at such meeting or if this Plan is not approved by the shareholders within
12 months after its adoption by the Board, this Plan (and all awards granted
hereunder) shall automatically terminate to the same extent and with the same
effect as though this Plan had never been adopted. If this Plan is approved by
shareholders, all awards granted under the Plan to persons who are "Affiliates"
of the Company (as defined under the Securities Act of 1933, as amended) shall
be deemed acquired on the date such approval is obtained.
5
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 19,
1999, included in Main Street and Main Incorporated's Form 10-K for the year
ended December 28, 1998, and to all references to our firm included in this
registration statement.
/s/ Arthur Andersen LLP
Phoenix, Arizona,
October 25, 1999.
