AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 30, 2003
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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
(Address of Principal Executive Offices) (Zip Code)
MAIN STREET AND MAIN INCORPORATED
2002 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)
COPIES TO:
ROBERT S. KANT, ESQ.
BRIAN H. BLANEY, ESQ.
GREENBERG TRAURIG, LLP
2375 East Camelback Road, Suite 700
Phoenix, Arizona 85016
(602) 445-8000
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED(1) SHARE PRICE REGISTRATION FEE
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Common Stock............. 6,588 shares $ 5.81 $ 38,276 $ 3.10
Common Stock............. 170,000 shares $ 4.16 $ 707,200 $ 57.21
Common Stock............. 5,000 shares $ 3.28 $ 16,400 $ 1.33
Common Stock............. 818,412 shares $ 1.67(2) $ 1,366,748(2) $ 110.57
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Totals............. 1,000,000 shares $ 2,128,624 $ 172.21
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(1) Represents 1,000,000 shares issuable under the 2002 Incentive Stock Plan.
This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 2002 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 May 28, 2003.
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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
The firm of Greenberg Traurig, LLP, Phoenix, Arizona, has acted as counsel
for the Registrant in the preparation of this Registration Statement. As of May
29, 2003, certain members of such firm beneficially owned a total of 5,000
shares of the Registrant's Common Stock.
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 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.
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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
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5 Opinion of Greenberg Traurig, LLP
10.42 2002 Incentive Stock Plan
23.1 Consent of KPMG LLP, independent auditors
23.2 Notice Regarding Consent of Arthur Andersen LLP
23.3 Consent of Greenberg Traurig, LLP (included in Exhibit 5)
24 Power of Attorney (included in the Signatures section 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.
(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 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
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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 Phoenix, State of Arizona, on this 29th day of May,
2003.
MAIN STREET AND MAIN INCORPORATED
By: /s/ Bart A. Brown, Jr.
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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 Michael J. Herron 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
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/s/ John F. Antioco Chairman of the Board May 29, 2003
-------------------------
John F. Antioco
/s/ Bart A. Brown, Jr. Chief Executive Officer and Director May 29, 2003
------------------------- (Principal Executive Officer)
Bart A. Brown, Jr.
/s/ William G. Shrader President, Chief Operating Officer, May 29, 2003
------------------------- and Director
William G. Shrader
/s/ Michael Garnreiter Chief Financial Officer (Principal May 29, 2003
------------------------- Financial and Accounting Officer),
Michael Garnreiter Vice President, and Treasurer
/s/ Jane Evans Director May 29, 2003
-------------------------
Jane Evans
/s/ John C. Metz Director May 29, 2003
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John C. Metz
/s/ Debra Bloy Director May 29, 2003
-------------------------
Debra Bloy
/s/ Wanda Williams Director May 29, 2003
-------------------------
Wanda Williams
/s/ Kenda B. Gonzalez Director May 29, 2003
-------------------------
Kenda B. Gonzalez
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EXHIBIT INDEX
Exhibit
Number Exhibit
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5 Opinion of Greenberg Traurig, LLP
10.42 2002 Incentive Stock Plan
23.1 Consent of KPMG LLP, independent auditors
23.2 Notice Regarding Consent of Arthur Andersen LLP
23.3 Consent of Greenberg Traurig, LLP (included in Exhibit 5)
24 Power of Attorney (included in the Signatures section of this
Registration Statement)