-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OTsooZHz0q/7wr1iwlneq/MF1ZehqU8OvfL/WF3FZF3vJhO5LUh68axWWNdhbE5X NoWK9DSQcyArlVNpPV7u3w== 0000950152-01-001429.txt : 20010323 0000950152-01-001429.hdr.sgml : 20010323 ACCESSION NUMBER: 0000950152-01-001429 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20010322 EFFECTIVENESS DATE: 20010322 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MONRO MUFFLER BRAKE INC CENTRAL INDEX KEY: 0000876427 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-AUTOMOTIVE REPAIR, SERVICES & PARKING [7500] IRS NUMBER: 160838627 STATE OF INCORPORATION: NY FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-57438 FILM NUMBER: 1576610 BUSINESS ADDRESS: STREET 1: 200 HOLLEDER PKWY CITY: ROCHESTER STATE: NY ZIP: 14615-3808 BUSINESS PHONE: 7166476400 S-8 1 l87038as-8.txt MONRO MUFFLER BRAKE, INC. FORM S-8 1 As filed with the Securities and Exchange Commission on March 22, 2001 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------------------------- MONRO MUFFLER BRAKE, INC. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) New York 16-0838627 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 200 Holleder Parkway, Rochester, New York 14615 (Address of Principal Executive Offices) (Zip Code) MONRO MUFFLER BRAKE, INC. NON-EMPLOYEE DIRECTORS'STOCK OPTION PLAN (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 (Name, Address and Telephone Number of Agent for Service) Copy to: Marc Weingarten, Esq. Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022
=================================================================================================================== CALCULATION OF REGISTRATION FEE Proposed Maximum Title of Proposed Maximum Aggregate Amount of Securities to Amount to be Offering Price Offering Registration be Registered Registered (1) Per Share (2) Price (2) Fee ------------- -------------- ---------------- ---------- ------------- Common Stock, par value 200,102 $10.125 $2,026,032.75 $506.51 $.01 per share shares ======================================================================================================================
- --------------------------------- (1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), this registration statement also covers an indeterminate number of shares as may be required to cover possible adjustments under the Monro Muffler Brake, Inc. Non-Employee Directors' Stock Option Plan, as amended (the "Plan"). (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h)(1) under the Securities Act, based on the average of the high and low prices quoted for the Common Stock (the "Common Stock") in NASDAQ over-the-counter trading on March 20, 2001. 2 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 participants in the Plan 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, 2000, filed with the Commission on June 29, 2000. 2. The Company's Quarterly Report on Form 10-Q, filed with the Commission on August 10, 2000. 3. The Company's Quarterly Report on Form 10-Q, filed with the Commission on November 14, 2000. 4. The Company's Quarterly Report on Form 10-Q, filed with the Commission on February 13, 2001. 5. The Company's Notice of Annual Meeting of Stockholders and Proxy Statement for its Annual Meeting of Stockholders held on August 7, 2000, filed pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). 6. 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. I-1 3 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. I-2 4 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 4.1 Monro Muffler Brake, Inc. Non-Employee Directors' Stock Option Plan 4.2 Monro Muffler Brake, Inc. Non-Employee Directors' Stock Option Plan Amendment No.1 4.3 Monro Muffler Brake, Inc. Non-Employee Directors' Stock Option Plan Amendment No.2 5 Opinion of Schulte Roth & Zabel LLP with respect to the legality of original issuance shares of Common Stock being registered 23.1 Consent of PricewaterhouseCoopers LLP 23.2 Consent of Schulte Roth & Zabel LLP (included in Exhibit 5) 24 Powers of Attorney (see pages II-1 and II-2 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; I-3 5 (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; (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. I-4 6 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. 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 19th day of March, 2001. MONRO MUFFLER BRAKE, INC. By: /s/ Robert G. Gross ---------------------------- Robert G. Gross President and Chief Executive Officer II-1 7 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.
Name and Signature Title Date ------------------ ----- ---- /s/ Robert G. Gross Director, President and March 19, 2001 - ------------------------------------- Chief Executive Officer Robert G. Gross (Principal Executive Officer) /s/ Catherine D'Amico Senior Vice-President-Finance March 19, 2001 - ------------------------------------- Chief Financial Officer Catherine D'Amico and Treasurer (Principal Financial and Accounting Officer) /s/ Burton S. August, Sr. Director March 19, 2001 - ------------------------------------- Burton S. August, Sr. /s/ Charles J. August Director March 19, 2001 - ------------------------------------- Charles J. August /s/ Robert W. August Director March 19, 2001 - ------------------------------------- Robert W. August /s/ Frederick M. Danziger Director March 19, 2001 - ------------------------------------- Frederick M. Danziger /s/ Jack M. Gallagher Director March 19, 2001 - ------------------------------------- Jack M. Gallagher /s/ Donald Glickman Director March 19, 2001 - ------------------------------------- Donald Glickman /s/ Peter J. Solomon Director March 19, 2001 - ------------------------------------- Peter J. Solomon /s/ Lionel B. Spiro Director March 19, 2001 - ------------------------------------- Lionel B. Spiro /s/ W. Gary Wood Director March 19, 2001 - ------------------------------------- W. Gary Wood
II-2 8 EXHIBIT INDEX Exhibit No. Document 4.1 Monro Muffler Brake, Inc. Non-Employee Directors' Stock Option Plan 4.2 Monro Muffler Brake, Inc. Non-Employee Directors' Stock Option Plan Amendment No.1 4.3 Monro Muffler Brake, Inc. Non-Employee Directors' Stock Option Plan Amendment No.2 5 Opinion of Schulte Roth & Zabel LLP with respect to the legality of original issuance shares of Common Stock being registered 23.1 Consent of PriceWaterhouseCoopers LLP 23.2 Consent of Schulte Roth & Zabel LLP (included in Exhibit 5) 24 Powers of Attorney (see pages II-1 and II-2 of this Registration Statement) III-1 EX-4.1 2 l87038aex4-1.txt EXHIBIT 4.1 1 Exhibit 4.1 MONRO MUFFLER BRAKE, INC. NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN 1. PURPOSE. The purpose of this Non-Employee Directors' Stock Option Plan (the "Plan") is to secure for Monro Muffler Brake, Inc., a New York corporation (the "Company"), and its shareholders the benefits of the incentive inherent in increased common stock ownership by members of the Company's Board of Directors (the "Board") who are not also employees of the Company or any of its subsidiaries (a "Non-Employee Director"). Options to purchase shares of the Company's Common Stock, $.01 par value, or such other shares as are substituted pursuant to paragraph 5(e) or (f) below (the "Common Stock"), shall be granted to Non-Employee Directors of the Company pursuant to the terms of this Plan. 2. ELIGIBILITY. Each Non-Employee Director shall be eligible to receive awards of non-qualified stock options in accordance with the specific provisions of paragraph 4 below ("Options"). The adoption of this Plan shall not be deemed to give any director any right to be granted an Option to purchase Common Stock except to the extent and upon such terms and conditions consistent with the Plan as may be determined by the Stock Option Committee of the Board (the "Committee"). 3. LIMITATION ON AGGREGATE SHARES. The maximum number of shares of Common Stock with respect to which Options may be granted under this Plan and which may be issued upon the exercise thereof shall not exceed, in the aggregate, 55,000 shares, subject to adjustment pursuant to paragraph 5(e) below; provided, however, that if any Options granted under this Plan expire unexercised or are cancelled, terminated or forfeited in any manner without the issuance of Common Stock thereunder, the shares with respect to which such Options were granted shall be available under this Plan. Such shares of Common Stock may be either authorized and unissued shares, treasury shares or a combination thereof, as the Committee shall determine. 4. TERMS AND CONDITIONS OF OPTIONS. Options granted under this Plan shall be subject to such terms and conditions and evidenced by written agreements in such form as shall be determined from time to time by the Committee and shall in any event be subject to the terms and conditions set forth in this Plan. In the event of any conflict between a written agreement and the Plan, the terms of the Plan shall govern. (a) OPTIONS TO CURRENT DIRECTORS. Each Non-Employee Director as of August 1, 1994 shall receive, as of such date, an Option (an "August Option") to purchase 2,500 shares of Common Stock. (b) ANNUAL OPTIONS. Each year on the date of the Annual Meeting of the Company's Shareholders (the "Annual Shareholders Meeting"), commencing with the 1995 Annual Shareholders Meeting, each Non-Employee Director shall automatically receive an Option to purchase 2,500 shares of Common Stock. (c) OPTION PRICE. The Option price per share of Common Stock shall be 100% of the "Fair Market Value" of a share of Common Stock on the date of grant (the 2 "Option Price"). The Fair Market Value of the Common Stock on any given date means (i) the mean between the highest and lowest reported sale prices on the New York Stock Exchange--Composite Transactions Table (or, if not so reported, on any domestic stock exchanges on which the Common Stock is then listed); (ii) if the Common Stock is not listed on any domestic stock exchange, the closing sale price or mean between the closing high bid and low asked prices as reported by the National Association of Securities Dealers Automated Quotation System (or, if not so reported, by the system then regarded as the most reliable source of such quotations); (iii) if the Common Stock is listed on a domestic exchange or quoted in the domestic over-the-counter market, but there are no reported sales or quotations, as the case may be, on the given date, the value determined pursuant to (i) or (ii) using the reported sale prices or quotations on the last previous date on which so reported; or (iv) if none of the foregoing clauses apply, the fair market value as determined in good faith by the Committee. (d) TERM OF OPTIONS. Each Option shall be exercisable for ten years after the date of grant. (e) EXERCISE OF OPTIONS. Options shall be exercised by written notice to the Company (to the attention of the Secretary of the Company) accompanied by payment in full of the Option Price. Payment of the Option Price may be made, at the discretion of the Non-Employee Director, (i) in cash (including check, bank draft or money order), (ii) by delivery of Common Stock (valued at the Fair Market Value thereof on the date of exercise) or (iii) by delivery of a combination of cash and Common Stock; provided, however, that the Committee may, in any instance, in order to prevent any possible violation of law, require the Option Price to be paid in cash; and provided, further, that the right to deliver Common Stock in payment of the Option Price may be limited or denied in any Option agreement. (f) RIGHTS AS A SHAREHOLDER. No Non-Employee Director shall have any rights as a shareholder with respect to any shares covered by an Option until the date a stock certificate for such shares is issued to him or her. Except as otherwise provided herein, no adjustments shall be made for dividends or distributions of other rights for which the record date is prior to the date such stock certificate is issued. 5. ADDITIONAL PROVISIONS. (a) CONDITIONS AND LIMITATIONS ON EXERCISE. Any Option shall be exercisable immediately upon the date of grant. Notwithstanding the foregoing, (i) no Option shall be exercisable prior to the adoption of the Plan by the Company's shareholders at the Company's 1995 Annual Shareholders Meeting, as provided in paragraph 9 below, and (ii) no shares of Common Stock issuable upon the exercise of an Option may be sold, assigned, pledged or otherwise transferred for a period of six months after the later to occur of (x) the adoption of the Plan by the Company's shareholders and (y) the grant of the Option, as is specified in Rule 16b-3 (or other period of time specified in such rule as such rule may be amended from time to time) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (b) TERMINATION OF TERM OF DIRECTORSHIP. Any Option shall be exercisable only during the holder's term as a director of the Company, except that an Option may be exercisable after the death, disability, as defined in Section 22(e)(3) of the Internal -2- 3 Revenue Code of 1986, as amended (the "Code") ("Disability"), or retirement from the Board at the age of 65 or thereafter ("Retirement"), of a holder while a director of the Company at any time until the earlier to occur of (i) the one year anniversary of the date of death, Disability, or Retirement and (ii) the termination of such Option pursuant to paragraph 4(d) above. (c) LISTING, REGISTRATION AND COMPLIANCE WITH LAWS AND REGULATIONS. Each Option shall be subject to the requirement that if at any time the Committee shall determine in its discretion, that the listing, registration or qualification of the shares subject to the Option upon any securities exchange or automated quotation system or under any state or federal securities or other law or regulation, or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition to or in connection with the granting of such Option or the issuance or purchase of shares thereunder, no such Option may be exercised, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Committee. The holder of such Option will supply the Company with such certificates, representations and information as the Company shall request and shall otherwise cooperate with the Company in obtaining such listing, registration, qualification, consent or approval. The Committee may at any time impose any limitations upon the exercise of an Option or the sale of the Common Stock issued upon exercise of an Option that, in the Committee's discretion, are necessary or desirable in order to comply with Section 16 of the Exchange Act and the rules and regulations thereunder. (d) NONTRANSFERABILITY OF OPTIONS. Options may not be transferred, assigned, pledged or hypothecated (whether by operation of law or otherwise) other than by will or the laws of descent and distribution or pursuant to a qualified domestic relations order, as defined by Section 4.l4(p) of the Code, Section 206(d)(3)(B) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the rules thereunder, and, during the lifetime of the person to whom they are granted, may be exercised only by such person (or his or her guardian or legal representative). (e) ADJUSTMENT FOR CHANGE IN COMMON STOCK. If the outstanding Common Stock is hereafter changed by reason of reorganization, merger, consolidation, recapitalization, reclassification, stock split-up, combination, exchange of shares, or the like, or dividends payable in shares of the Common Stock or other securities or assets, an appropriate adjustment shall be made by the Committee in the aggregate number of shares available under the Plan, in the number of shares subject to Options to be granted thereafter pursuant to paragraphs 4(a) and 4(b), and in the number of shares and price per share subject to outstanding Options. Any adjustment in the number of shares shall apply appropriately to only the unexercised portion of any Option granted hereunder. If fractions of a share would result from any such adjustment, the adjustment shall be revised to the next higher whole number of shares. (f) SALE OF THE COMPANY. In the event of a merger of the Company with or into another corporation constituting a change of control, a sale of all or substantially all of the Company's assets or a sale of a majority of the Company's outstanding voting securities (a "Sale of the Company"), the Options may be assumed by the successor corporation or a parent of such successor corporation or substantially equivalent options may be substituted by the successor corporation or a parent of such successor corporation, and if the successor corporation -3- 4 does not assume the Options or substitute options, then the Options shall terminate if not exercised as of the date of the Sale of the Company or other prescribed period of time. (g) LIQUIDATION OR DISSOLUTION. In the event of the liquidation or dissolution of the Company, Options shall terminate immediately prior to the liquidation or dissolution. (h) TAXES. The Company shall be entitled, if necessary or desirable, to withhold (or secure payment from the Non-Employee Director in lieu of withholding) the amount of any withholding or other tax due from the Company with respect to any shares issuable under this Plan, and the Company may defer such issuance unless indemnified to its satisfaction. The Committee may, in its sole discretion and subject to such rules as it may adopt, permit a Non-Employee Director to elect to satisfy any such withholding obligation, in whole or in part, by having the Company withhold shares of Common Stock that are otherwise issuable upon the exercise of such Option and have a Fair Market Value (as of the date of exercise) equal to the amount required to be withheld, or by surrendering to the Company previously-acquired shares of Common Stock that have such a Fair Market Value. 6. ADMINISTRATION. This Plan shall be administered by the Committee. The Committee shall consist of two or more directors designated by the Board. It is intended that the Plan will constitute a "formula plan" within the meaning of Rule 16b-3 under the Exchange Act. The provisions of the Plan and of any Option agreement made pursuant to the Plan will be interpreted and applied accordingly. The Committee shall have full power to construe and interpret this Plan and Options granted hereunder, to establish and amend rules for its administration and to correct any defect or omission and to reconcile any inconsistency in this Plan or in any Option granted hereunder to the extent the Committee deems desirable to carry this Plan or any Option granted hereunder into effect. All actions taken and interpretations and determinations made by the Committee in good faith shall be final and binding upon the Company, all Non-Employee Directors who have received awards under the Plan and all other interested parties. The Committee may act a meeting or by an instrument executed by all of its members. All actions taken and decisions made by the Committee pursuant to this Plan shall be binding and conclusive on all persons interested in this Plan. 7. TERMINATION AND AMENDMENT. At any time the Committee may suspend or terminate this Plan and make such additions or amendments as it deems advisable; provided, that such additions or amendments are made in compliance with Rule 16b-3 of the Exchange Act (as such rule may be amended from time to time); and provided, further, that paragraphs 4 and 5(a) and (b) shall not be amended more than once every six months (other than to comply with the federal securities laws, the Code, or ERISA). No Options shall be granted hereunder after August 1, 2004. Notwithstanding any termination (other than pursuant to paragraph 5(a) above), the terms of the Plan shall continue to apply to Options granted prior to any such termination. 8. LIABILITY. No member of the Committee shall be personally liable for any action, interpretation or determination made with respect to the Plan or awards made thereunder, -4- 5 and each member of the Committee shall be fully indemnified and protected by the Company with respect to any liability he or she may incur with respect to any such action, interpretation or determination, to the extent permitted by applicable law and to the extent provided by the Company's Certificate of Incorporation and By-laws, as amended from time to time. 9. EFFECTIVE DATE OF PLAN. The Plan shall be effective as of August 1, 1994 or such later date as the Board may determine, provided that the adoption of the Plan shall have been approved by the Company's shareholders at the Company's 1995 Annual Shareholders Meeting. If the Plan is not so approved by the Company's shareholders, the Plan and all Options granted hereunder shall terminate. 10. NOTICES. Notices required or permitted to be made under the Plan shall be sufficiently made if personally delivered to the Non-Employee Director or sent by regular mail addressed (a) to the Non-Employee Director's address as set forth in the books and records of the Company, or (b) to the Company or the Committee at the principal office of the Company clearly marked "Attention: Stock Option Committee". 11. GOVERNING LAW. The Plan and each agreement hereunder shall be governed in all respects by the laws of the State of New York. -5- EX-4.2 3 l87038aex4-2.txt EXHIBIT 4.2 1 Exhibit 4.2 MONRO MUFFLER BRAKE, INC. NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN AMENDMENT, dated as of May 12, 1997 WHEREAS, Monro Muffler Brake, Inc., a New York corporation (the "Corporation"), established on August 1, 1994, the Monro Muffler Brake, Inc. Non-Employee Directors' Stock Option Plan (the "Directors' Plan"); and WHEREAS, in order to maintain the benefits of the incentive inherent in increased ownership of the Corporation's common stock, par value $.01 per share ("Common Stock"), by members of the Corporation's Board of Directors who are not employees of the Corporation or its subsidiaries, the Board of Directors of the Corporation desires to increase the amount of shares of Common Stock authorized for awards under the Directors' Plan, pursuant to the exercise of stock options, from 60,637 (as restated to give effect to the 5% stock dividends paid August 1995 and August 1996) to 125,637; NOW, THEREFORE, subject to ratification by the shareholders of the Corporation, the Directors' Plan is hereby amended as follows: 1. By deleting "55,000 shares" from Section 3 of the Directors' Plan and inserting in its place "125,637 shares". 2. Except as hereinabove amended, the Directors' Plan shall remain in full force and effect. Dated approved by Board of Directors - May 12, 1997 Shareholders - August 12, 1997 EX-4.3 4 l87038aex4-3.txt EXHIBIT 4.3 1 Exhibit 4.3 MONRO MUFFLER BRAKE, INC. NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN AMENDMENT, dated as of May 18, 1999 WHEREAS, Monro Muffler Brake, Inc., a New York corporation (the "Corporation"), established on August 1, 1994, the Monro Muffler Brake, Inc. Non-Employee Directors' Stock Option Plan (the "Directors' Plan"); and WHEREAS, in order to maintain the benefits of the incentive inherent in increased ownership of the Corporation's common stock, par value $.01 per share ("Common Stock"), by members of the Corporation's Board of Directors who are not employees of the Corporation or its subsidiaries, the Board of Directors of the Corporation desires to increase the amount of shares of Common Stock authorized for awards under the Directors' Plan, pursuant to the exercise of stock options, from 135,102 (as restated to give effect to the 5% stock dividends paid August 1995, August 1996, August 1997 and June 1998) to 200,102; NOW, THEREFORE, subject to ratification by the shareholders of the Corporation, the Directors' Plan is hereby amended as follows: 1. By deleting "125,637 shares" from Section 3 of the Directors' Plan and inserting in its place "200,102 shares". 2. Except as hereinabove amended, the Directors' Plan shall remain in full force and effect. Dated approved by Board of Directors - May 18, 1999 Shareholders - August 2, 1999 EX-5 5 l87038aex5.txt EXHIBIT 5 1 Exhibit 5 [Letterhead of Schulte Roth & Zabel LLP] Opinion of Schulte Roth & Zabel LLP March 22, 2001 Monro Muffler Brake, Inc. 200 Holleder Parkway Rochester, New York 14615 Ladies and Gentlemen: We have acted as counsel for Monro Muffler Brake, Inc., a New York corporation (the "Company"), in connection with the preparation and filing by the Company with the Securities and Exchange Commission (the "Commission") of a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), relating to the offer and sale of an aggregate of 200,102 shares of Common Stock, par value $.01 per share, of the Company (the "Shares") issuable to participants in the Company's Non-Employee Directors' Stock Option Plan, as amended (the "Plan"). In our capacity as counsel, we have examined originals, telecopies or copies of such records of the Company and all such agreements, certificates of public officials, certificates of officers or representatives of the Company and others, and such other documents, certificates and corporate or other records, as we have deemed necessary or appropriate as a basis for the opinion set forth herein. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons signing or delivering any instrument, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. As to questions of fact, we have relied, to the extent we deemed appropriate, upon representations and certificates of officers of the Company, public officials and other appropriate persons. Based upon and subject to the foregoing, and having regard for such legal considerations as we deem relevant, we are of the opinion that the Shares, to the extent constituting original issuance securities, have been duly authorized and, when issued and delivered to plan participants in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable. 2 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, /s/ Schulte Roth & Zabel LLP EX-23.1 6 l87038aex23-1.txt EXHIBIT 23.1 1 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of Monro Muffler Brake, Inc. of our report dated May 17, 2000 appearing in Item 8 of the Monro Muffler Brake, Inc. Annual Report on Form 10-K for the year ended March 31, 2000. /s/PricewaterhouseCoopers LLP PRICEWATERHOUSECOOPERS LLP Rochester, New York March 19, 2001 -----END PRIVACY-ENHANCED MESSAGE-----