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As filed with the Securities and Exchange Commission on August 19, 1998
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.
--------------------------------------------------
(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)
UNITEDAUTO 401(K) SAVINGS AND RETIREMENT PLAN
UNITED AUTO GROUP, INC. STOCK OPTION PLAN
(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
---------------------------------------
(Name, address and telephone number,
including area code, of agent for service)
COPY TO:
Laurence D. Weltman, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
(212) 728-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum Amount of
Title of securities to be Amount to be registered offering price per aggregate offering registration fee
registered (1) share (2) price (2)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Voting Common Stock, par
value $0.0001 per share 1,500,000 16.9375 $25,406,250 $7,494.84
</TABLE>
(1) This Registration Statement covers 1,000,000 shares issuable pursuant
to the UnitedAuto 401(k) Savings and Retirement Plan (the "Savings
Plan") and an additional 500,000 shares issuable under the United Auto
Group, Inc. Stock Option Plan (collectively, the "Plans"). In
addition, this Registration Statement covers an indeterminable number
of additional shares as may hereinafter be offered or issued, pursuant
to the Plans, to prevent dilution resulting from stock splits, stock
dividends or similar transactions effected without the receipt of
consideration and, pursuant to Rule 416(c) under the Securities Act of
1933, as amended (the "Securities Act"), an indeterminable amount of
participation interests to be offered or sold pursuant to the Savings
Plan.
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 under 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
August 17, 1998.
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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 "Company") are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 (File No. 1-12297), filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1998 and June 30, 1998, filed pursuant to the
Exchange Act;
(c) The Company's current reports on Form 8-K, filed on
January 14, 1998, February 20, 1998, and April 22, 1998 pursuant to
the Exchange Act; and
(d) The description of Company'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 on October
9, 1996 pursuant to the Exchange Act.
In addition, all documents filed by the Company or the Savings Plan
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.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
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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 Company has adopted provisions in its Certificate of Incorporation
and Bylaws that provide that the Company shall indemnify its officers and
directors to the maximum extent permitted under the DGCL. The Employment
Agreement, dated as of June 21, 1996, between the Company and Carl Spielvogel
provides for indemnification of Mr. Spielvogel to the maximum extent legally
permitted or authorized by the Company's Certificate of Incorporation or Bylaws
or resolutions of the Board of Directors.
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The Stockholders Agreement, dated as of October 15, 1993, among the Company 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 Company, 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 Company 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 Company's initial public offering provides for indemnification of the
Company, its officers and its directors by the underwriters under certain
circumstances.
The Company has purchased insurance on behalf of its officers and
directors for liabilities arising out of 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 Company
(incorporated by reference to Exhibit No. 3.1 to the
Company's Registration Statement on Form S-1 (Registration
No. 333-09429)).
4.2 Third Restated Bylaws of the Company (incorporated by
reference to Exhibit No. 3.2 to the Company's Registration
Statement on Form S-1 (Registration No. 333-09429)).
5 Opinion of Willkie Farr & Gallagher, counsel to the
Company, as to the legality of the shares being offered.
23.1 Consent of Pricewaterhouse Coopers LLP.
23.2 Consent of Willkie Farr & Gallagher
(contained in Exhibit 5).
24 Power of Attorney
(reference is made to the signature page).
The Company hereby undertakes to submit the Savings Plan and
any amendments thereto to the Internal Revenue
<PAGE>
Service (the "IRS") in a timely manner and will make all changes
required by the IRS in order to qualify the Savings Plan as a
tax-exempt retirement trust so long as the Savings Plan remains in
force.
Item 9. UNDERTAKINGS.
1. The undersigned registrant hereby undertakes:
(a) 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;
(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;
(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)(i) and (a)(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 Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) 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.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act and each filing of the Savings Plan's annual report pursuant to
section 15(d) of the Exchange Act that is incorporated by reference in the
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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.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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 Company 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 Company
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 18th day of
August, 1998.
UNITED AUTO GROUP, INC.
By: /s/ Philip N. Smith, Jr.
----------------------------
Philip N. Smith, Jr.
Senior Vice President
and Assistant Secretary
Pursuant to the requirements of the Securities Act, the administrative
committee of the Savings Plan 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 18th day of August, 1998.
UNITEDAUTO 401(K) SAVINGS AND
RETIREMENT PLAN
By: /s/ Karl H. Winters
----------------------------
A member of the
Administrative Committee
of the Savings Plan
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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-fact, 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 August 18, 1998
- --------------------- Chief Executive Officer
Marshall S. Cogan (Principal Executive
Officer)
/s/ Karl H. Winters Executive Vice President August 18, 1998
- ------------------- and Chief Financial Officer
Karl H. Winters (Principal Financial
Officer)
/s/ James R. Davidson Executive Vice President August 18, 1998
- --------------------- Accounting and Fixed
James R. Davidson Operations (Principal
Accounting Officer)
/s/ Samuel X. DiFeo Director August 18, 1998
- -------------------
Samuel X. DiFeo
- -------------------- Director August __, 1998
Michael R. Eisenson
/s/ John J. Hannan Director August 18, 1998
- ------------------
John J. Hannan
/s/ Jules B. Kroll Director August 18, 1998
- ------------------
Jules B. Kroll
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/s/ Robert H. Nelson Director August 18, 1998
- --------------------
Robert H. Nelson
- -------------------- Director August __, 1998
John M. Sallay
/s/ Richard Sinkfield Director August 18, 1998
- ---------------------
Richard Sinkfield
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description
----------- -----------
5 Opinion of Willkie Farr & Gallagher, counsel to the Company,
as to the legality of the shares being offered.
23.1 Consent of Pricewaterhouse Coopers LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Power of Attorney (reference is made to the signature page).
<PAGE>
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019-6099
August 19, 1998
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 "Company"), with respect to the Company's Registration Statement on Form
S-8 (the "Registration Statement") to be filed by the Company 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 Company of an aggregate of 1,000,000 shares of Voting
Common Stock, par value $0.0001 per share (the "Stock"), issuable pursuant to
the UnitedAuto 401(k) Savings and Retirement Plan and 500,000 shares of Stock
issuable pursuant to the United Auto Group, Inc. Stock Option Plan
(collectively, the "Plans").
As counsel for the Company, 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 of
Stock to be originally issued under the Plans 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. In giving such consent, we do not hereby admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission.
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
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8, relating to the United Auto 401(k) Savings and Retirement Plan and
United Auto Group, Inc. Stock Option Plan, of our report dated February 27,
1998, on our audits of the consolidated financial statements and financial
statement schedules of United Auto Group, Inc. as of December 31, 1997 and
December 31, 1996 and for each of the three years in the period ended December
31, 1997, which report is included in the Annual Report Form 10-K.
/s/ Pricewaterhouse Coopers LLP
August 18, 1998
