As Filed with the Securities and Exchange Commission on October 8, 1998
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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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
(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:
PETER J. SHEA, ESQ.
PARKER, POE, ADAMS & BERNSTEIN L.L.P.
2500 CHARLOTTE PLAZA, CHARLOTTE, NORTH CAROLINA 28244
TELEPHONE (704) 372-9000
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CALCULATION OF REGISTRATION FEE
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Title of
Securities Amount Proposed Maximum Proposed Maximum Amount
to be to be Offering Price Aggregate Of
Registered Registered Per Share Offering Price Registration Fee
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Class A Common
Stock, par value
$0.01 per share 1,125,000 $17.28 $19,440,000 $5,735
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(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 October 7, 1998 which
prices were $18.1875 and $16.3750, respectively.
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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
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of Sonic Automotive, Inc. (the "Company") filed
with the Securities and Exchange Commission are incorporated herein by
reference:
(i) the Company's Annual Report on Form 10-K for its fiscal year ended
December 31, 1997 (File No. 1-13395);
(ii) the Company's Amended Annual Report on Form 10-K/A for the year
ended December 31, 1997;
(iii) the Company's Quarterly Report on Form 10-Q for its fiscal quarter
ended March 31, 1998;
(iv) the Company's Quarterly Report on Form 10-Q for its fiscal quarter
ended June 30, 1998;
(v) the Company's Current Reports on Form 8-K, filed the following
dates: March 30, 1998, July 9, 1998, and July 24, 1998;
(vi) the Company's Amended Current Report on Form 8-K/A, filed on July
24, 1998, relating to its Current Report on Form 8-K filed on March
30, 1998;
(vii) the Company's Amended Current Report on Form 8-K/A, filed on August
20, 1998, relating to its Current Report on Form 8-K filed on July
24, 1998; and
(viii) the description of the 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 Securities Exchange Act
of 1934, as amended (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 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 4. Description of Securities
Not Applicable
Item 5. Interests of Named Experts and Counsel
Not Applicable
2
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 attorney's 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 interest 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 of 1933 for the benefit of its officers and directors.
Item 7. Exemption from Registration Claimed
Not Applicable
Item 8. Exhibits
Exhibit
Number Description
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4.1 Sonic Automotive, Inc. 1997 Stock Option Plan
4.2 Form of Incentive Stock Option Agreement
and Grant pursuant to the Sonic
Automotive, Inc. 1997 Stock Option Plan
4.3 Form of Nonstatutory Stock Option
Agreement and Grant pursuant to the
Sonic Automotive, Inc. 1997 Stock Option
Plan
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 Parker, Poe, Adams &
Bernstein L.L.P. (included in Exhibit
5.1 to this Registration Statement).
3
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 the Registration
Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (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.
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 low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than 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 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, 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 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 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 Charlotte, State of North Carolina, on October
8, 1998.
Sonic Automotive, Inc.
BY: /s/ O. Bruton Smith
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O. Bruton Smith
Chairman and Chief Executive Officer
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 of 1933, as amended, 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, as amended 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 of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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Chief Executive Officer (principle October 8, 1998
/s/ O. Bruton Smith executive officer) and Chairman
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O. Bruton Smith
President, Chief Operating Officer and October 8, 1998
/s/ B. Scott Smith Director
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B. Scott Smith
Chief Financial Officer, Vice
President-Finance, Treasurer, Secretary
(Principle Financial and Accounting October 8, 1998
/s/ Theodore M. Wright Officer) and Director
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Theodore M. Wright
October 8, 1998
/s/ Nelson E. Bowers Executive Vice President and Director
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Nelson E. Bowers
October 8, 1998
/s/ William R. Brooks Director
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William R. Brooks
October 8, 1998
/s/ William P. Benton Director
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William P. Benton
October 8, 1998
/s/ William I. Belk Director
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William I. Belk
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1 Sonic Automotive, Inc. 1997 Stock Option Plan
4.2 Form of Incentive Stock Option Agreement
and Grant pursuant to the Sonic
Automotive, Inc. 1997 Stock Option Plan
4.3 Form of Nonstatutory Stock Option
Agreement and Grant pursuant to the
Sonic Automotive, Inc. 1997 Stock Option
Plan
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 Parker, Poe, Adams &
Bernstein L.L.P. (included in Exhibit
5.1 to this Registration Statement).
6