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As filed with the Securities and Exchange Commission on June 21, 1996
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UGLY DUCKLING CORPORATION
(Exact name of Registrant as specified in charter)
Delaware 86-0721358
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2525 East Camelback Road, Suite 1150, Phoenix, Arizona 85016
(Address of Principal Executive Office) (Zip Code)
UGLY DUCKLING CORPORATION DIRECTOR INCENTIVE PLAN
(Full title of plan)
Steven P. Johnson
UGLY DUCKLING CORPORATION
2525 East Camelback Road, Suite 1150
Phoenix, Arizona 85016
(Name and address of agent for service)
(602) 852-6000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Aggregate Offering Registration
per Share(1) Price Fee
- ----------------------------------------------------------------------------------------
Common Stock 50,000 $9.44 $472,000 $163.00
$0.001 par value
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</TABLE>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the registration fee using the average of the high and low price of the
Registrant's Common Stock on June 20, 1996.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to participants in accordance with Form S-8 and Rule
428 under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by Ugly Duckling Corporation
(the "Registrant") with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934 and are hereby incorporated by reference into
this Registration Statement:
(a) the Registrant's prospectus, dated June 17, 1996, filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended.
(b) the description of the Registrant's capital stock contained in
the Registrant's Registration Statement on Form 8-A, dated June 11, 1996, filed
with the Securities and Exchange Commission pursuant to Section 12(g) of the
Securities Act of 1934, as amended.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing such documents. Any
statement contained in a document 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 subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, 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.
Item 6. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation provides that a director of
the Company shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability for: (i) any breach of the director's duty of loyalty to
the Company or its stockholders; (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii)
liability for payments of dividends or stock purchases or redemptions in
violation of Section 174 of the Delaware General Corporation Law; or (iv) any
transaction from which the director derived an improper personal benefit. In
addition, the Company's Certificate of Incorporation provides that the Company
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shall to the fullest extent authorized by the Delaware General Corporation Law,
as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the corporation to
provide broader indemnification rights than such law permitted the corporation
to provide prior to such amendment), indemnify and hold harmless any person who
was or is a party, or is threatened to be made a party to or is otherwise
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of the fact
that such person is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "Indemnitee") against expenses, liabilities and losses
(including attorneys' fees, judgments, fines, excise taxes or penalties paid in
connection with the Employee Retirement Income Security Act of 1974, as
amended, and amounts paid in settlement) reasonably incurred or suffered by
such Indemnitee in connection therewith; provided, however, that except as
otherwise provided with respect to proceedings to enforce rights to
indemnification, the Company shall indemnify any such Indemnitee in connection
with a proceeding (or part thereof) initiated by such Indemnitee only if such
proceeding or part thereof was authorized by the board of directors of the
Company.
The Delaware General Corporation Law provides that indemnification is
permissible only when the director, officer, employee, or agent acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was unlawful. The
Delaware General Corporation Law also precludes indemnification in respect of
any claim, issue, or matter as to which an officer, director, employee, or
agent shall have been adjudged to be liable to the Company unless and only to
the extent that the Court of Chancery or the court in which such action or suit
was brought shall determine that, despite such adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper. The Company has obtained insurance on behalf of
its directors and officers for any liability arising out of such person's
actions in such capacity.
The Company has entered into agreements to indemnify its directors and
officers. These agreements, among other things, indemnify the Company's
directors and officers for certain expenses (including attorneys' fees),
judgments, fines, and settlement amounts incurred by any such person in any
action or proceeding, including any action by or in the right of the Company,
arising out of such person's services as a director or officer of the Company,
any subsidiary of the Company, or any other company or enterprise to which such
person provides services at the request of the Company. To the extent that the
Board of Directors or the stockholders of the Company may in the future wish to
limit or repeal the ability of the Company to provide indemnification as set
forth in the Company's Certificate of Incorporation, such repeal or limitation
may not be effective as to directors or officers who are parties to the
indemnification agreements because their rights to full protection would be
contractually assured by such agreements. It is anticipated that similar
contracts may be entered into, from time to time, with future directors of the
Company. The Company believes that the indemnification provisions in its
Certificate of Incorporation and in the indemnification agreements are
necessary to attract and retain qualified persons as directors and officers.
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Item 7. Exemption from Registration Claimed. Not applicable.
Item 8. Exhibits. The Exhibit Index is located on page 6.
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 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;
(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 or Form S-8 and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for purposes 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.
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(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 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 of 1933 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 such Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than 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 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 June 21, 1996.
UGLY DUCKLING CORPORATION, a Delaware corporation
By: /s/ Ernest C. Garcia, II
---------------------------------------
Ernest C. Garcia, II
Its: Chairman of the Board and Chief Executive
Officer
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.
Name and Signature Title Date
/s/ Ernest C. Garcia II Chairman of the Board and June 21, 1996
- -------------------------------- Chief Executive Officer
Ernest C. Garcia, II (Principal Executive Officer)
/s/ Gregory B. Sullivan President June 21, 1996
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Gregory B. Sullivan
/s/ Steven T. Darak Senior Vice President and June 21, 1996
- -------------------------------- Chief Financial Officer
Steven T. Darak (Principal Financial and
Accounting Officer)
/s/ Robert J. Abrahams Director June 21, 1996
- --------------------------------
Robert J. Abrahams
/s/ Christopher D. Jennings Director June 21, 1996
- --------------------------------
Christopher D. Jennings
/s/ John D. MacDonough Director June 21, 1996
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John D. MacDonough
/s/ Arturo R. Moreno Director June 21, 1996
- --------------------------------
Arturo R. Moreno
/s/ Frank P. Willey Director June 21, 1996
- --------------------------------
Frank P. Willey
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EXHIBIT INDEX
Exhibit Number Description
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5 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Snell & Wilmer L.L.P.
Included in Exhibit 5.1
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Exhibit 5
June 21, 1996
Ugly Duckling Corporation
2525 East Camelback Road, Suite 1150
Phoenix, Arizona 85016
Re: Ugly Duckling Corporation Director Incentive Plan
Ladies and Gentlemen:
We have acted as counsel to Ugly Duckling Corporation, a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement") filed under the Securities Act of 1933,
relating to the registration of 50,000 shares of its Common Stock, $.001 par
value (the "Shares"), issuable pursuant to the Company's Director Incentive
Plan (the "Plan").
In that connection, we have examined such documents, corporate records,
and other instruments as we have deemed necessary or appropriate for purposes
of this opinion, including the Certificate of Incorporation, as amended, and
the Bylaws, as amended, of the Company.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly organized and is validly existing as
a corporation under the laws of the State of Delaware.
2. The Shares, when issued and sold in accordance with the terms
of the Plan, will be validly issued, fully paid, and
nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
SNELL & WILMER L.L.P.
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EXHIBIT 23.1
[LETTERHEAD OF KPMG PEAT MARWICK LLP]
The Board of Directors
Ugly Duckling Corporation:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Ugly Duckling Corporation of our report dated January 24, 1996,
except as to Note 23 which is as of April 24, 1996, relating to the
consolidated balance sheets of Ugly Duckling Corporation and subsidiaries as of
December 31, 1995 and 1994, and the related consolidated statements of
operations, stockholders' equity (deficit) and cash flows for each of the years
in the three-year period ended December 31, 1995, which report appears in the
June 17, 1996 Prospectus of Ugly Duckling Corporation.
KPMG Peat Marwick LLP
Phoenix, Arizona
June 21, 1996
