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Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNITED AUTO GROUP, INC.
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(Exact name of issuer as specified in its charter)
Delaware 22-3086739
--------------------------------- ----------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
375 Park Avenue, New York, New York 10152
- -------------------------------------------------------------------------------
(Address of principal executive offices) (Zip code)
United Auto Group, Inc. Stock Option Plan
United Auto Group, Inc. Non-employee Director Compensation Plan
Stock Option Agreement, dated as of April 3, 1996, between United
Auto Group, Inc. and Carl Spielvogel
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(Full title of the plans)
Marshall S. Cogan
Chairman of the Board
and Chief Executive Officer
United Auto Group, Inc.
375 Park Avenue
New York, New York 10152
(212) 223-3300
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(Name, address and telephone number,
including area code, of agent for service)
COPY TO:
Laurence D. Weltman, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
(212) 821-8000
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CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
Title of maximum maximum
securities offering aggregate Amount of
to be Amount to be price per offering registration
registered registered (1) share price fee
===============================================================================
Voting
Common
Stock, par
value
$0.0001
per share 1,342,838 $17.32(2) $23,257,954(2) $7,048.00
Voting
Common
Stock, par
value
$0.0001
per share 400,000 $10.00 $4,000,000 $1,213.00
(1) This Registration Statement covers the additional 1,292,838 shares
issuable under the United Auto Group, Inc. Stock Option Plan, the 50,000
shares issuable under the United Auto Group, Inc. Non-employee Director
Compensation Plan and 400,000 shares issuable under the Stock Option
Agreement, dated as of April 3, 1996, between United Auto Group, Inc. and
Carl Spielvogel. In addition, this Registration Statement covers an
indeterminable number of additional shares as may hereinafter be offered
or issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions effected without the receipt of
consideration.
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act
of 1933, as amended (the "Securities Act"), based upon the average of the
high and low prices of the Voting Common Stock as reported by the New
York Stock Exchange, Inc. on April 28, 1997.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by United Auto Group, Inc. (the "Registrant") are
incorporated herein by reference:
(a) The Registrant's annual report filed on Form 10-K for the
fiscal year ended December 31, 1996 (File No. 1-12297), filed pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(b) The Registrant's current reports on Form 8-K, filed with the
Commission pursuant to the Exchange Act on January 23, 1997, March 3,
1997, March 21, 1997, April 21, 1997 and April 30 1997, respectively.
(c) The description of Registrant's Voting Common Stock, par
value $0.0001 per share ("Common Stock"), contained in the
Registration Statement on Form 8-A (File No. 1-12297) filed pursuant
to the Exchange Act on October 9, 1996.
In addition, all documents filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement, and prior to the filing of a
post-effective amendment which indicates that all the securities offered hereby
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 the filing of such documents with the
Commission. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein (or in any other subsequently filed
document which also is incorporated by reference herein) modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
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Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers a Delaware corporation to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. A corporation may indemnify such person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, has no reasonable cause to believe his
conduct was unlawful. A corporation may, in advance of the final disposition of
any civil, criminal, administrative or investigative action, suit or
proceeding, pay the expenses (including attorneys' fees) incurred by any
officer or director in defending such action, provided that the director or
officer undertake to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the corporation.
A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation to procure a judgment in its favor
under the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses (including attorneys' fees) which he
actually or reasonably incurred in connection therewith. The indemnification
provided is not deemed to be exclusive of any other rights to which an officer
or director may be entitled under any corporation's bylaw, agreement, vote or
otherwise.
The Registrant has adopted provisions in its Certificate of
incorporation and By-laws that provide that the Registrant shall indemnify its
officers and directors to the
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maximum extent permitted under the DGCL. The Employment Agreement, dated as of
June 21, 1996, between the Registrant and Carl Spielvogel provides for
indemnification of Mr. Spielvogel to the maximum extent legally permitted or
authorized by the Registrant's Certificate of Incorporation or Bylaws or
resolutions of the Board of Directors. The Stockholders Agreement, dated as of
October 15, 1993, among the Registrant and the investors named therein provides
that in the event that a director elected pursuant thereto is made or
threatened to be made a party to any action, suit or proceeding with respect to
which such director may be entitled to indemnification by the Registrant, such
director will be entitled to be represented by counsel of his choice and the
reasonable expenses of such representation will be reimbursed by the Registrant
to the extent provided in or authorized by its Certificate of Incorporation or
Bylaws. Certain directors are also entitled to indemnification from the
organizations that employ them.
In addition, the Underwriting Agreement entered into in connection
with the Registrant's initial public offering provides for indemnification of
the Registrant, its officers and its directors by the underwriters under
certain circumstances.
The Registrant has purchased insurance on behalf of its officers and
directors for liabilities arising out their capacities as such.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
Exhibit No. Description
- ----------- -----------
4.1 Third Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit No. 3.1 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-09429)).
4.2 Third Restated Bylaws of the Registrant (incorporated by
reference to Exhibit No. 3.2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-09429)).
5 Opinion of Willkie Farr & Gallagher, counsel to the Registrant,
as to the legality of the shares being offered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5)
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24 Power of Attorney (reference is made to the signature page).
Item 9. UNDERTAKINGS.
(a) The 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 the most recent
post-effective amendment thereto) 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) under the Securities Act if, in the aggregate, the
changes in volume and price represent no more than a 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 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 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.
(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 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
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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 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 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, officers or controlling persons 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.
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SIGNATURES
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 New York, State of New York, on this 30th day of
April, 1997.
UNITED AUTO GROUP, INC.
By: /s/ Marshall S. Cogan
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Marshall S. Cogan
Chairman of the Board and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Marshall S. Cogan and Philip N. Smith,
Jr., and each of them, his true and lawful attorney-in-fact, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any amendments to this Registration Statement and to file
the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorney-in-facts, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated:
Signature Capacity Date
- --------- -------- ----
/s/ Marshall S. Cogan Chairman of the Board and April 30, 1997
- ----------------------- Chief Executive Officer
Marshall S. Cogan (Principal Executive
Officer)
/s/ Robert H. Nelson Executive Vice President April 30, 1997
- ----------------------- Chief Financial
Robert H. Nelson Officer and Director
(Principal Financial
Officer)
/s/ Robert W. Thompson Vice President - Finance April 30, 1997
- ----------------------- (Principal Accounting
Robert W. Thompson Officer)
/s/ Michael R. Eisenson Director April 30, 1997
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Michael R. Eisenson
/s/ John. J. Hannan Director April 30, 1997
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John J. Hannan
/s/ Jules B. Kroll Director April 30, 1997
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Jules B. Kroll
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/s/ John M. Sallay Director April 30, 1997
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John M. Sallay
/s/ Richard Sinkfield Director April 30, 1997
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Richard Sinkfield
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INDEX TO EXHIBITS
Exhibit No. Description
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4.1 Third Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit No. 3.1 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-09429)).
4.2 Third Restated Bylaws of the Registrant (incorporated by
reference to Exhibit No. 3.2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-09429)).
5 Opinion of Willkie Farr & Gallagher, counsel to the Registrant,
as to the legality of the shares being offered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5)
24 Power of Attorney (reference is made to the signature page).
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[LETTERHEAD OF WILLKIE FARR & GALLAGHER]
April 30, 1997
United Auto Group, Inc.
375 Park Avenue
New York, New York 10152
Ladies and Gentlemen:
We have acted as counsel to United Auto Group, Inc., a Delaware
corporation (the "Registrant"), with respect to the Registrant's Registration
Statement on Form S-8 (the "Registration Statement") to be filed by the
Registrant with the Securities and Exchange Commission on or about the date
hereof. The Registration Statement relates to the registration under the
Securities Act of 1933, as amended, by the Registrant of an aggregate of
1,742,838 shares (the "Shares") of Voting Common Stock, par value $0.0001 per
share, issuable (i) upon exercise of options granted or to be granted under the
United Auto Group, Inc. Stock Option Plan, (ii) under the United Auto Group,
Inc. Non-employee Director Stock Compensation Plan and (iii) upon exercise of
the option pursuant to the Stock Option Agreement, dated as of April 3, 1996,
between the Registrant and Carl Spielvogel (collectively, the "Plans").
As counsel for the Registrant, we have examined, among other things,
such federal and state laws and originals and copies (certified or otherwise
identified to our satisfaction) of the Plans and such other documents,
certificates and records as we deemed necessary and appropriate for the purpose
of preparing this opinion.
Based on the foregoing, we hereby inform you that in our opinion the
Shares have been duly and validly authorized for issuance and, when issued in
accordance with the terms of the Plans, will be validly issued, fully paid and
nonassessable.
We hereby consent to the inclusion of this opinion as part of the
Registration Statement.
We are members of the Bar of the State of New York and do not purport
to be experts in the laws of jurisdictions other than the State of New York,
the General Corporation Law of the State of Delaware and the federal laws of
the United States of America.
Very truly yours,
/s/ Willkie Farr & Gallagher
Willkie Farr & Gallagher
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[Coopers & Lybrand Letterhead]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated February 25, 1997, on our
audits of the financial statements of United Auto Group Inc.
/s/ Coopers & Lybrand L.L.P.
Princeton, New Jersey
April 30, 1997
