<PAGE>
As filed with the Securities and Exchange Commission on July 29, 1997
Registration No. ___________
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)
DELAWARE86-0721358
(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 OFFICES) (ZIP CODE)
UGLY DUCKLING CORPORATION LONG-TERM 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) 852-6600
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PRICE PER SHARE(1) PRICE(1) FEE
- -------------------- ------------ ------------------- -------------------- -------------
Common Stock 1,000,000 $15.1875 $15,187,500 $4,603
0.001 par value
</TABLE>
(1) Pursuant to Rule 457(h), the maximum offering price was calculated to
be $15.1875 based upon the average of the high and low prices of the common
stock of the registrant reported on the NASDAQ National Market as of July 24,
1997, as reprinted in The Wall Street Journal, Western Edition.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and
2, have been 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.
Pursuant to General Instruction E to Form S-8, the contents of Ugly
Duckling Corporation's Registration Statement on Form S-8 (File No. 333-08457)
as filed with the Securities and Exchange Commission on July 19, 1996 are
incorporated herein by reference, except as the same may be modified by the
information set forth herein. This Registration Statement is being filed to
register an additional 1,000,000 shares of Ugly Duckling Corporation Common
Stock that became available in 1997 under the terms of the Ugly Duckling
Corporation Long-Term Incentive Plan, as amended, (the "Plan") for grants and
awards under the Plan.
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 Form 10-K Report for the fiscal year ended
December 31, 1996, as amended by its Form 10-K/A Report filed on May 20, 1997;
(b) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997;
(c) the Registrant's Form 8-K Report dated January 15, 1997, as
amended by its Form 8-K/A1 Report dated January 15, 1997 and its Form 8-K/A2
Report dated January 15, 1997;
(d) the Registrant's Form 8-K Report dated February 3, 1997;
(e) the Registrant's Form 8-K Report dated February 11, 1997, as
amended by its Form 8-K/A1 Report dated February 11, 1997 and its Form 8-K/A2
Report dated February 11, 1997;
(f) the Registrant's 8-K Report dated April 1, 1997, as amended by
its Form 8-K/A1 Report dated April 1, 1997;
(g) the Registrant's Form 8-K Report dated April 21, 1997;
(h) the Registrant's Form 8-K Report dated July 17, 1997; and
(i) the description of the Registrant's capital stock contained in
Pre-Effective Amendment No. 3 to the Registrant's Registration Statement on
Form S-1 (File No. 333-22237) as filed on April 18, 1997.
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
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
ITEM 8. EXHIBITS. The Exhibit Index is located after the signature page
on this document.
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 and 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 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;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) above 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.
(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 provisions of Item 6, 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.
<PAGE>
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 July
29, 1997.
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.
<TABLE>
<CAPTION>
Name and Signature Title Date
- ------------------------------ --------------------------------------- --------------
<S> <C> <C>
/s/ Ernest C. Garcia II Chairman of the Board, Chief
- ------------------------------ Executive Officer and Director July 29, 1997
Ernest C. Garcia II (Principal executive officer)
/s/ Steven T. Darak Senior Vice President and Chief
- ------------------------------ Financial Officer (Principal financial July 29, 1997
Steven T. Darak and accounting officer)
/s/ Robert J. Abrahams
- ------------------------------ Director July 29, 1997
Robert J. Abrahams
/s/ Christopher D. Jennings
- ------------------------------ Director July 29, 1997
Christopher D. Jennings
/s/ John N. MacDonough
- ------------------------------ Director July 29, 1997
John N. MacDonough
/s/ Arturo R. Moreno
- ------------------------------ Director July 29, 1997
Arturo R. Moreno
/s/ Frank P. Willey
- ------------------------------ Director July 29, 1997
Frank P. Willey
</TABLE>
[F:\LEGAL\UDC.33R\FORMS-8.RTF]
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
<S> <C>
Exhibit Number Description
- -------------- ---------------------------------------------------------------------------------
4.1 Certificate of Incorporation of Ugly Duckling Corporation (1)
4.2 Bylaws of Ugly Duckling Corporation(1)
4.3 Series A Preferred Stock Agreement(1)
4.4 18% Subordinated Debenture of the Registrant issued to Verde Investments, Inc.(1)
4.5 18% Junior Subordinated Revolving Debenture of the Registrant issued to Verde
Investments, Inc., as amended(1)
4.6 Convertible Note of the Registrant issued to SunAmerica Life Insurance Company(1)
4.7 Form of Certificate representing Common Stock(1)
4.8 Form of Warrant issued to Cruttenden Roth Incorporated as Representative
of the several underwriters(1)
4.9 Form of Warrant issued to SunAmerica Life Insurance Company(1)
5 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of KPMG Peat Marwick LLP (Phoenix, Arizona)
23.2 Consent of KPMG Peat Marwick LLP (Tampa, Florida)
23.3 Consent of Snell & Wilmer L.L.P. (included in exhibit 5)
23.4 Consent of Barton & Company, P.A.
23.5 Consent of Ernst & Young LLP
</TABLE>
(1) Incorporated by reference to the Company's Registration Statement on
Form S-1 (Registration No. 333-3998), effective June 18, 1996.
EXHIBIT 5
July 28, 1997
Ugly Duckling Corporation
2525 East Camelback Road, Suite 1150
Phoenix, Arizona 85016
RE: UGLY DUCKLING CORPORATION LONG-TERM 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 1,000,000 shares of its Common Stock, $.001
par value (the "Shares"), issuable pursuant to the Company's Long-Term
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 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,
/s/ SNELL & WILMER L.L.P.
EXHIBIT 23.1
INDEPENDENT ACCOUNTANTS' CONSENT
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 31, 1997,
except for Note 19 to the Consolidated Financial Statements which is as of
February 13, 1997, relating to the consolidated balance sheets of Ugly Duckling
Corporation and subsidiaries as of December 31, 1996 and 1995, 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, 1996,
which report appears in the December 31, 1996 annual report on Form 10-K as
amended by its Form 10-K/A of Ugly Duckling Corporation.
/s/ KPMG Peat Marwick, LLP
Phoenix, Arizona
July 29, 1997
EXHIBIT 23.2
INDEPENDENT ACCOUNTANTS' CONSENT
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 March 18, 1997,
relating to the combined balance sheet of Seminole Finance Corporation and
Related Companies as of December 31, 1996, and the related combined statements
of operations, stockholder's equity (deficit), and cash flows for the year
ended December 31, 1996, which report appears in the Form 8-K as amended by
its Form 8-K/A-1 and its Form 8-K/A2 of Ugly Duckling Corporation.
Our report dated March 18, 1996, contains an explanatory paragraph that states:
"the accompanying combined financial statements have been prepared assuming
that the Company will continue as a going concern. As discussed in Note 7 to
the combined financial statements, the Company is involved in a lawsuit that
involves a material amount of damages that, if there were an adverse outcome,
raise substantial doubt about its ability to continue as a going concern.
Management's plans in regard to this matter are also described in Note 7. The
combined financial statements do not include any adjustments that might result
from the outcome of this uncertainty."
/s/ KPMG Peat Marwick, LLP
Tampa, Florida
July 29, 1997
EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Ugly Duckling Corporation:
We consent to the incorporation by reference in the Registration Statement
(Form S-8 for the registration of 1,000,000 shares of common stock) pertaining
to the Ugly Duckling Corporation Long-Term Incentive Plan of Ugly Duckling
Corporation of our report dated February 10, 1997 with respect to the combined
balance sheet of Seminole Finance Corporation and Related Companies as of
December 31, 1995 and the related combined statements of operations, stock-
holders' equity (deficit), and cash flows for the year ended December 31, 1995,
which report appears in the Form 8-K as amended by its Form 8-K/A1 and its
Form 8-K/A2 of Ugly Duckling Corporation there were filed with the Securities
and Exchange Commission.
/s/ Barton & Company, P.A.
Certified Public Accountants
St. Petersburg, Florida
July 29, 1997
EXHIBIT 23.5
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 for the registration of 1,000,000 shares of common stock) pertaining
to the Ugly Duckling Corporation Long-Term Incentive Plan of Ugly Duckling
Corporation of our report dated February 24, 1997, except for Note 8, as to
which the date is February 28, 1997, with respect to the financial statements
of E-Z Plan, Inc. and to the inclusion of the Current Report (Form 8-K/A1)
filed with the Securities and Exchange Commission.
/s/ Ernst & Young, LLP
San Antonio, Texas
July 29, 1997
