As Filed with the Securities and Exchange Commission on September 20, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SONIC AUTOMOTIVE, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 56-2010790
(State or Other Jurisdiction (I.R.S. Employer
Of Incorporation or Organization) Identification No.)
5401 East Independence Boulevard 28212
P.O. Box 18747 (Zip Code)
Charlotte, North Carolina
(Address of Principal Executive Offices)
SONIC AUTOMOTIVE, INC. 1997 STOCK OPTION PLAN
AMENDED AND RESTATED AS OF JUNE 5, 2000
(Full Title of Plan)
Mr. O. Bruton Smith
Chairman and Chief Executive Officer
Sonic Automotive, Inc.
5401 E. Independence Boulevard
P.O. Box 18747
Charlotte, North Carolina 28212
(704) 532-3320
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
Copies to:
Gary C. Ivey, Esq.
Parker, Poe, Adams & Bernstein L.L.P.
2500 Charlotte Plaza, Charlotte, North Carolina 28244
Telephone (704) 372-9000
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Maximum Proposed Maximum Amount
Securities to be Offering Price Aggregate Of
to be Registered Registered Per Share(1) Offering Price Registration Fee
Class A Common Stock, 1,500,000 shares $9.4375 $14,156,250.00 $3,737.25
par value $0.01 per
share
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 (h) under the Securities Act of 1933, based upon the
average of the high and low prices of the Registrant's Class A Common
Stock reported on the New York Stock Exchange on September 19, 2000 which
prices were $9.50 and $9.375, respectively.
This Registration Statement relates to the registration of additional
securities relating to an employee benefit plan for which registration
statements filed on Form S-8 (File Nos. 333-65447 and 333-81053) were filed by
the Company with the Securities and Exchange Commission on October 8, 1998 and
June 18, 1999, respectively. The contents of the October 8, 1998 and June 18,
1999 registration statements, including any amendments thereto, are incorporated
herein by this reference.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information) will be sent or given to employees
as specified by Securities and Exchange Commission Rule 428(b)(1). Such
documents need not be filed with the Securities and Exchange Commission either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents, which include the statement
of availability required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part
II hereof), taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act of 1933, as amended (the "Securities
Act").
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring to those documents. The information
incorporated by reference is considered to be part of this Registration
Statement, and information that we file later with the Securities and Exchange
Commission will automatically update and supersede this information. Sonic
Automotive, Inc. (the "Company," and sometimes referred to herein as the
"Registrant") incorporates by reference the documents listed below and any
future filings made with the Securities and Exchange Commission under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"):
(i) the Company's Annual Report on Form 10-K for its fiscal year ended
December 31, 1999 (File No. 1-13395);
(ii) the Company's Quarterly Report on Form 10-Q for its fiscal quarter
ended March 31, 2000;
(iii) the Company's Quarterly Report on Form 10-Q for its fiscal quarter
ended June 30, 2000;
(iv) the Company's Definitive Proxy Materials dated May 1, 2000;
(v) the Company's Amended Current Report on Form 8-K/A, filed on January
18, 2000, relating to its Current Report on Form 8-K filed on
November 19, 1999;
(vi) the Company's Amended Current Report on Form 8-K/A, filed on January
27, 2000, relating to its Current Report on Form 8-K filed on
December 22, 1999;
(vii) the Company's Current Report on Form 8-K filed on September 15,
2000; and
(viii) the description of the Company's Class A Common Stock contained in
the Company's Registration Statement on Form 8-A, as amended, filed
with the SEC pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by the Registrant pursuant to sections 13(a),
13(c), 14 or 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 into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document, all or a portion of which is incorporated or
2
deemed to be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or amended, to constitute a part of this
Registration Statement.
Item 6. Indemnification of Officers and Directors
The Registrant's Bylaws effectively provide that the Registrant shall, to
the full extent permitted by Section 145 of the General Corporation Law of the
State of Delaware, as amended from time to time ("Section 145"), indemnify all
persons whom it may indemnify pursuant thereto. In addition, the Registrant's
Certificate of Incorporation eliminates personal liability of its directors to
the full extent permitted by Section 102(b)(7) of the General Corporation Law of
the State of Delaware, as amended from time to time ("Section 102(b)(7)").
Section 145 permits a corporation to indemnify its directors and officers
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlements actually and reasonably incurred by them in connection with any
action, suit or proceeding brought by a third party if such directors or
officers acted in good faith and in a manner they reasonably believed to be in,
or not opposed to, the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reason to believe their conduct was
unlawful. In a derivative action, indemnification may be made only for expenses
actually and reasonably incurred by directors and officers in connection with
the defense or settlement of an action or suit and only with respect to a matter
as to which they shall have acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made if such person shall have been
adjudged liable to the corporation, unless and only to the extent that the court
in which the action or suit was brought shall determine upon application that
the defendant officers or directors are reasonably entitled to indemnity for
such expenses despite such adjudication of liability.
Section 102(b)(7) provides that a corporation may eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for willful or negligent conduct
in paying dividends or repurchasing stock out of other than lawfully available
funds, or (iv) for any transaction from which the director derived an improper
personal benefit. No such provision shall eliminate or limit the liability of a
director for any act or omission occurring prior to the date when such provision
becomes effective.
The Company maintains insurance against liabilities under the Securities
Act for the benefit of its officers and directors.
Item 8. Exhibits
Exhibit
Number Description
- ------ -----------
4.1 Sonic Automotive, Inc. 1997 Stock Option Plan
Amended and Restated as of June 5, 2000
4.2 Form of Incentive Stock Option Agreement and Grant
pursuant to the Sonic Automotive, Inc. 1997 Stock Option
Plan Amended and Restated as of June 5, 2000
4.3 Form of Nonstatutory Stock Option Agreement and Grant
pursuant to the Sonic Automotive, Inc. 1997 Stock Option
Plan Amended and Restated as of June 5, 2000
5.1 Opinion of Parker, Poe, Adams & Bernstein L.L.P. regarding
the legality of securities registered
3
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of KPMG, LLP
23.3 Consent of Parker, Poe, Adams & Bernstein L.L.P. (included
in Exhibit 5.1 to 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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement
(or 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 the volume of securities
offered (if the total dollar value of securities offered
would not exceed that which was registered), any
deviation from the high or low end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more that
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F- 3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
(c) 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 Securities and Exchange Commission such
indemnification is against public policy
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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.
[Signatures begin on next page]
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act, 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 Charlotte, State of North Carolina, on September 15,
2000
Sonic Automotive, Inc.
BY: /s/ O. Bruton Smith
-------------------------------------
O. Bruton Smith
Chief Executive Officer and Chairman
POWER OF ATTORNEY
We, the undersigned directors and officers of Sonic Automotive, Inc., do
hereby constitute and appoint Messrs. O. Bruton Smith, Bryan Scott Smith, and
Theodore M. Wright, each with full power of substitution, our true and lawful
attorney-in-fact and agent to do any and all acts and things in our names and in
our behalf in our capacities stated below, which acts and things either of them
may deem necessary or advisable to enable Sonic Automotive, Inc. to comply with
the Securities Act, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but not limited to, power and authority to
sign for any and all of us in our names, in the capacities stated below, any and
all amendments (including post-effective amendments) hereto and any subsequent
registration statement filed pursuant to Rule 462(b) under the Securities Act of
1933, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission; and we do
hereby ratify and confirm all that they shall do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
/s/ O. Bruton Smith Chief Executive Officer (principle executive officer), September 15, 2000
- -------------------------------- Chairman and Director
O. Bruton Smith
/s/ Thomas A. Price Vice Chairman and Director September 15, 2000
- --------------------------------
Thomas A. Price
/s/ B. Scott Smith President, Chief Operating Officer and Director September 15, 2000
- --------------------------------
B. Scott Smith
Chief Financial Officer, Vice President-Finance, September 15, 2000
Treasurer (Principle Financial and Accounting
/s/ Theodore M. Wright Officer) and Director
- --------------------------------
Theodore M. Wright
/s/ Jeffrey C. Rachor Executive Vice President of Retail Operations and September 15, 2000
- -------------------------------- Director
Jeffrey C. Rachor
/s/ William R. Brooks Director September 15, 2000
- --------------------------------
William R. Brooks
/s/ William P. Benton Director September 15, 2000
- --------------------------------
William P. Benton
/s/ William I. Belk Director September 15, 2000
- --------------------------------
William I. Belk
/s/ Robert Heller Director September 15, 2000
- --------------------------------
H. Robert Heller
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INDEX TO EXHIBITS
Exhibit
Number Description
- ------ -----------
4.1 Sonic Automotive, Inc. 1997 Stock Option Plan
Amended and Restated as of June 5, 2000
4.2 Form of Incentive Stock Option Agreement and Grant
pursuant to the Sonic Automotive, Inc. 1997 Stock Option
Plan Amended and Restated as of June 5, 2000
4.3 Form of Nonstatutory Stock Option Agreement and Grant
pursuant to the Sonic Automotive, Inc. 1997 Stock Option
Plan Amended and Restated as of June 5, 2000
5.1 Opinion of Parker, Poe, Adams & Bernstein L.L.P. regarding
the legality of securities registered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of KPMG, LLP
23.3 Consent of Parker, Poe, Adams & Bernstein L.L.P. (included
in Exhibit 5.1 to this Registration Statement)
7