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As filed with the Securities and Exchange Commission
on April 7, 2000
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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MONRO MUFFLER BRAKE, INC.
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(Exact name of registrant as specified in its charter)
New York 16-0838627
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 Holleder Parkway, Rochester, New York 14615
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(Address of Principal Executive Offices) (Zip Code)
MONRO MUFFLER BRAKE, INC. PROFIT SHARING PLAN
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(Full Title of the Plan)
Robert G. Gross
President and Chief Executive Officer
MONRO MUFFLER BRAKE, INC.
200 Holleder Parkway
Rochester, New York 14615
(716) 647-6400
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(Name, Address and Telephone Number of Agent for Service)
Copy to:
Marc Weingarten, Esq.
Schulte Roth & Zabel LLP
900 Third Avenue
New York, New York 10022
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered Per Share (2) Offering Price (2) Fee
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<S> <C> <C> <C> <C>
Common Stock, par value 150,000 $8.25 $1,237,500 $326.70
$.01 per share (1) shares
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</TABLE>
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Securities Act"), this registration statement also
covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act of 1933, based on
the average of the high and low prices quoted for the Common Stock in
NASDAQ over-the-counter trading on April 4, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information required by Part I of
Form S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act. These documents and the documents incorporated
by reference herein pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents which have been filed by Monro Muffler
Brake, Inc., a New York corporation (the "Company"), with the Securities and
Exchange Commission (the "Commission") are hereby incorporated by reference:
1. The Company's Annual Report on Form 10-K for its fiscal
year ended March 31, 1999, filed with the Commission on June 29, 1999.
2. The Company's Quarterly Report on Form 10-Q, filed with the
Commission on August 10, 1999.
3. The Company's Quarterly Report on Form 10-Q, filed with the
Commission on November 15, 1999.
4. The Company's Current Report on Form 8-K, filed with the
Commission on February 2, 2000.
5. The Company's Quarterly Report on Form 10-Q, filed with the
Commission on February 14, 2000.
6. The Company's Notice of Annual Meeting of Stockholders and
Proxy Statement for its Annual Meeting of Stockholders held on August 2, 1999,
filed pursuant to Section 14 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
7. The description of the Common Stock contained in the
Company's Registration Statement on Form S-1 filed with the Commission pursuant
to Section 12 of the Exchange Act, on June 19, 1991 (File No. 33-41290), and any
amendment or report filed for the purpose of further updating such description.
All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of 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 and to
be a part of this Registration Statement from the date of filing of such reports
and documents.
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Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Limitation of Directors' Liability.
Section 402(b) of the Business Corporation Law of the State of
New York (the "BCL"), authorizes a New York corporation in its certificate of
incorporation to limit or eliminate the personal liability of its directors to
the corporation and its shareholders for damages for certain breaches of duty
when acting in their capacity as directors.
Section 7 of the Company's Restated Certificate of
Incorporation limits the liability of its directors (in their capacity as
directors but not in their capacity as Company officers) to the Company and its
shareholders to the fullest extent permitted by the BCL. However, in accordance
with the BCL, the Restated Certificate of Incorporation states that it does not
eliminate or limit:
(a) the liability of any director if a judgment or other final
adjudication adverse to such director establishes (i) that his
acts or omissions were in bad faith or involved intentional
misconduct or a knowing violation of law, (ii) that such
director personally gained in fact a financial profit or other
advantage to which he was not legally entitled, or (iii) that
such director's acts violated Section 719 of the BCL; or (b)
the liability of any director for any act or omission prior to
the adoption of this Restated Certificate of Incorporation.
The Certificate of Incorporation also provides that no
amendment, modification or repeal of Section 7 shall adversely affect any right
or protection of a director that exists at the time of such amendment,
modification or repeal.
Indemnification and Insurance.
Section 722 of the BCL provides that a corporation may
indemnify its current and former directors and officers under certain
circumstances. The Company's Bylaws generally provide that the Company will
indemnify to the fullest extent permitted by law any person who is or was a
director or officer of the Company against any judgments, fines, amount paid in
settlement and reasonable expenses, including attorneys' fees, which may arise
by reason of the fact that such person is or was a director or officer of the
Company, or where, at the Company's request, such person serves or served any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise in any capacity. In accordance with Section 726 of the BCL, the
Company also maintains insurance for the benefit of its directors and officers
insuring them against certain liabilities arising out of their service in such
capacities, including liabilities under the securities law.
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Section 721 of the BCL provides that no such indemnification
can be made if a judgment or other final adjudication adverse to such person
establishes that his acts were committed in bad faith or were the result of
active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as a part
of this Registration Statement:
Exhibit No. Document
4 Monro Muffler Brake, Inc. Profit Sharing Plan (to
be filed by amendment)
23 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney (see pages II-1 and II-2 of
this Registration Statement)
The Company hereby undertakes that it will submit or has
submitted the Monro Muffler Brake, Inc. Profit Sharing Plan (the "Plan") and any
amendment thereto to the Internal Revenue Service ("IRS") in a timely manner and
will make or has made all changes required by the IRS in order to qualify the
Plan.
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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
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(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 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, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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.
(h) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the 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.
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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 Rochester, State of New York, on this 7th day of
April, 2000.
MONRO MUFFLER BRAKE, INC.
By: /s/ Robert G. Gross
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Robert G. Gross
President and Chief Executive Officer
POWER OF ATTORNEY
The Registrant and each person whose signature appears below
hereby appoint Robert G. Gross and Catherine D'Amico, and each of them, as their
attorneys-in-fact, with full power of substitution, to execute in their names
and on behalf of the Registrant and each such person, individually and in each
capacity stated below, one or more amendments (including post-effective
amendments) to this Registration Statement as the attorney-in-fact acting on the
premise shall from time to time deem appropriate and to file any such amendment
to this Registration Statement with the Securities and Exchange Commission.
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Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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<CAPTION>
Name and Signature Title Date
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<S> <C> <C>
/s/ Catherine D'Amico Senior Vice-President-Finance April 3, 2000
- ------------------------- Chief Financial Officer and Treasurer
Catherine D'Amico (Principal Financial and Accounting Officer)
/s/ Burton S. August, Sr. Director April 4, 2000
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Burton S. August, Sr.
/s/ Charles J. August Director April 4, 2000
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Charles J. August
/s/ Robert W. August Director April 4, 2000
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Robert W. August
/s/ Frederick M. Danziger Director April 3, 2000
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Frederick M. Danziger
/s/ Jack M. Gallagher Director April 3, 2000
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Jack M. Gallagher
/s/ Donald Glickman Director April 4, 2000
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Donald Glickman
/s/ Peter J. Solomon Director April 4, 2000
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Peter J. Solomon
/s/ Lionel B. Spiro Director April 3, 2000
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Lionel B. Spiro
/s/ W. Gary Wood Director April 5, 2000
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W. Gary Wood
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EXHIBIT INDEX
Exhibit No. Document Page
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23 Consent of PricewaterhouseCoopers LLP III-2
24 Powers of Attorney (see pages II-1 and II-2 of this II-1
Registration Statement)
III-1
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Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 27, 1999 relating to the
financial statements, which appears in the 1999 Annual Report on Form 10-K of
Monro Muffler Brake, Inc. for the year ended March 31, 1999.
/s/ PricewaterhouseCoopers LLP
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PRICEWATERHOUSECOOPERS LLP
Rochester, New York
April 6, 2000
III-2
