Filed with the Securities and Exchange Commission on December ___, 1998
Securities Act Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
LITHIA MOTORS, INC.
(Exact name of registrant as specified in its charter)
Oregon 93-0572810
(State of incorporation) (I.R.S. Employer Identification No.)
360 E. Jackson St., Medford, Oregon 97501
(Address of principal executive offices) (Zip Code)
LITHIA MOTORS, INC. 1998 EMPLOYEE STOCK BONUS PLAN
(Full title of the plan)
Sidney B. DeBoer, Chief Executive Officer
360 E. Jackson St.
Medford, Oregon 97501
(541) 776-6899
(Name, address and telephone number
of agent for service)
Copies to:
Kenneth E. Roberts, Esq.
Foster Pepper & Shefelman
101 S.W. Main St., 15th Fl.
Portland, Oregon 97204
<TABLE>
CALCULATION OF REGISTRATION FEE
_____________________________________________________________________________________________
<S> <C> <C> <C> <C>
Proposed Proposed
Number of Maximum Maximum Amount of
Title of Securities Shares Being Offering Price Aggregate Registration
Being Registered Registered Per Share (1) Offering Price (1) Fee
_____________________________________________________________________________________________
Class A Common Stock 2,000 $17.50 $35,000.00 $9.73
_____________________________________________________________________________________________
</TABLE>
(1) Pursuant to Rule 457(h), the offering price is estimated based on the
last sale price reported for the Common Stock on NASDAQ on December 10,
1998 and the maximum offering price is calculated for the sole purpose
of determining the Registration Fee as all shares will be issued to
employees as a bonus.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Lithia Motors, Inc. (the "Company")
with the Securities and Exchange Commission are incorporated by reference in
this registration statement:
1. The Company's annual report on Form 10-K filed with the
Commission on March 31, 1998 (File No. 000-21789).
2. The description of the Class A Common Stock contained in the
Company's registration statement on Form S-1, as amended and filed with
the Commission on May 1, 1998, (File No. 333-47525).
All documents filed by the Company subsequent to those listed above
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange
Act of 1934, as amended, 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 herein and to be a part hereof from the date of
filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Under the Oregon Business Corporation Act (Oregon Revised Statutes
("ORS") Sections 60.387 to 60.414), applicable to the Company, a person who
is made a party to a proceeding because such person is or was an officer or
director of a corporation may be indemnified by the corporation against
liability incurred by such person in connection with the proceeding if (i)
the person's conduct was in good faith and in a manner he or she reasonably
believed was in the corporation's best interest or at least not opposed to
its best interests and (ii) if the proceeding was a criminal proceeding, the
Indemnitee had no reasonable cause to believe his or her conduct was
unlawful. Indemnification is not permitted if the person was adjudged liable
to the corporation in a proceeding by or in the right of the corporation, or
if the Indemnitee was adjudged liable on the basis that he or she improperly
received a personal benefit. Unless the articles of the corporation provide
otherwise, such indemnification is mandatory if the Indemnitee is wholly
successful on the merits or otherwise, or if ordered by a court of competent
jurisdiction.
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The Oregon Business Corporation Act also provides that a company's
Articles of Incorporation may limit or eliminate the personal liability of a
director to the corporation or its shareholders for monetary damages for
conduct as a director, provided that no such provision shall eliminate the
liability of a director for (i) any breach of the directors' duty of loyalty
to the corporation or its shareholders; (ii) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law;
(iii) any unlawful distribution; or (iv) any transaction from which the
director derived an improper personal benefit.
The Company's Articles of Incorporation (the "Articles") provide that
the Company will indemnify its directors and officers, to the fullest extent
permissible under the Oregon Business Corporation Act against all expense
liability and loss (including attorney fees) incurred or suffered by reason
of service as a director or officer of the company or is or was serving at
the request of the company as a director, officer, partner, trustee, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise.
The effect of these provisions is to limit the liability of directors
for monetary damages, and to indemnify the directors and officers of the
Company for all costs and expenses for liability incurred by them in
connection with any action, suit or proceeding in which they may become
involved by reason of their affiliation with the Company, to the fullest
extent permitted by law. These provisions do not limit the rights of the
Company or any shareholder to see non-monetary relief, and do not affect a
director's or officer's responsibilities under any other laws, such as
securities or environmental laws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits required by Item 601 of Regulation S-K being filed
herewith or incorporated herein by reference are as follows:
Exhibit
3.1 Restated Articles of Incorporation of Lithia Motors, Inc.
Incorporated by reference to Exhibit 3.1 to the Company's registration
statement on Form S-1, as amended, and filed with the Commission on May
1, 1998, (File No. 333-47525)
3.2 Bylaws of Lithia Motors, Inc.
Incorporated by reference to Exhibit 3.2 to the Company's registration
statement on Form S-1, as amended, and filed with the Commission on May
1, 1998, (File No. 333-47525)
4.1 Specimen Stock Certificate. Incorporated by reference to Exhibit 4.1
to the Company's registration statement on Form S-1, as amended, and
filed with the Commission on May 1, 1998, (File No. 333-47525).
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5.1 Opinion of Foster Pepper & Shefelman
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Foster Pepper & Shefelman
(Included in Exhibit 5.1)
24.1 Power of Attorney
(Included in the signature page)
99 Lithia Motors, Inc. 1998 Employee Stock Bonus Plan
II-3
<PAGE>
tem 9. Undertakings.
The undersigned registrant hereby undertakes:
(A) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(1) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(2) 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;
(3) 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 1 and 2 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 Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(B) That, for the purpose 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.
(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.
(D) 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 that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(E) 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 described
in 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 the Act and is, therefore, unenforceable. In
the event that the 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,
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<PAGE>
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. The foregoing undertaking shall not apply
to indemnification which is covered by insurance.
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<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 Medford, State of Oregon, on the
11th day of December, 1998.
LITHIA MOTORS, INC.
By: /S/ M. L. Dick Heimann
M.L. Dick Heimann
President and Chief Operating Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
and appoints SIDNEY B. DeBOER and BRIAN R. NEILL, and each of them, with full
power of substitution to act as his true and lawful attorney in fact and
agent to act in his name, place and stead, and to execute in the name and on
behalf of each person, individually and in each capacity stated below, and to
file any and all amendments to this registration, including any and all
post-effective amendments or new registration pursuant to Rule 462.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
By: /s/ Sidney B. Debore Date: December 11, 1998
Sidney B. DeBoer
Chief Executive Officer and
Chairman of the Board of Directors
By: /s/ M. L. Dick Heimann Date: December 11, 1998
M.L. Dick Heimann
President, Chief Operating Officer,
Director
By: /s/ R. Bradford Gray Date: December 11, 1998
R. Bradford Gray, Director
By: /s/ Thomas Becker Date: December 11, 1998
Thomas Becker, Director
<PAGE>
By: /s/ William Young Date: December 11, 1998
William Young, Director
By: /s/ Brian R. Neill Date: December 11, 1998
Brian R. Neill
Senior Vice President, Chief Financial
Officer (Chief Accounting and
Financial Officer)
<PAGE>
EXHIBIT INDEX
Exhibit
3.1 Restated Articles of Incorporation of Lithia Motors, Inc.
Incorporated by reference to Exhibit 3.1 to the Company's registration
statement on Form S-1 as amended and filed with the Commission on May
1, 1998, (File No. 333-47525).
3.2 Bylaws of Lithia Motors, Inc.
Incorporated by reference to Exhibit 3.2 to the Company's registration
statement on Form S-1 as amended and filed with the Commission on May
1, 1998, (File No. 333-47525).
4.1 Specimen Stock Certificate. Incorporated by reference to Exhibit 4.1
to the Company's registration statement on Form S-1, as amended and
filed with the Commission on May 1, 1998, (File No. 333-47525).
5.1 Opinion of Foster Pepper & Shefelman
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Foster Pepper & Shefelman
(Included in Exhibit 5.1)
24.1 Power of Attorney
(Included in the signature page)
99 Lithia Motors, Inc. 1998 Employee Stock Bonus Plan
EXHIBIT 5.1
[FOSTER PEPPER & SHEFELMAN LETTERHEAD]
December 11, 1998
Board of Directors
Lithia Motors, Inc.
360 E. Jackson St.
Medford, Oregon 97501
Re: Form S-8 Registration of 1998 Employee Stock Bonus Plan
Gentlemen:
This firm is special counsel to Lithia Motors, Inc., an Oregon
corporation, (the "Company") and, in that capacity has assisted in the
preparation of certain documents relating to the issuance of up to 2,000
shares of the Company's common stock ("Shares") in accordance with the
Company's 1998 Employee Stock Bonus Plan (the "Plan"); in particular, the
Company's Registration Statement on Form S-8 (the "Registration Statement").
In the course of our representation as described above, we have
examined the Plan, the Registration Statement as prepared for filing with the
Securities and Exchange Commission and related documents and correspondence.
We have received from officers of the Company having custody thereof and have
reviewed the Restated Articles of Incorporation and the Bylaws of the
Company, and minutes of certain meetings of the Company's Board of
Directors. We have also received from the officers of the Company
certificates and other representations concerning factual matters. We have
received such certificates from, and have had conversations with, public
officials in those jurisdictions in which we have deemed it appropriate.
As to matters of fact, we have relied upon the above certificates,
documents and investigation. We have assumed without investigation the
genuineness of all signatures and the authenticity and completeness of all of
the documents submitted to us as originals and the conformity to authentic
and complete original documents of all documents submitted to us as certified
or photostatic copies.
Based upon and subject to all of the foregoing, we are of the opinion
that:
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The Shares have been validly authorized, and (i) when the
Registration Statement has become effective; (ii) such
state securities laws as may be applicable have been
complied with, and (iii) the Shares have been delivered as
contemplated by the Registration Statement, the Shares will
be validly issued, fully paid and non-assessable.
This opinion is limited to the present laws of the State of Oregon and
the United States of America and to the facts bearing on this opinion as they
exist on the date of this letter. We disclaim any obligation to review or
supplement this opinion or to advise you of any changes in the circumstances,
laws or events that may occur after this date or otherwise update this
opinion.
This opinion is provided to you as a legal opinion only, and not as a
guaranty or warranty of the matters discussed herein. Our opinion is limited
to the matters expressly stated herein, and no other opinions may be implied
or inferred.
The opinions expressed herein are for the benefit of and may be relied
upon only by you in connection with the Plan. Neither this opinion nor any
extract therefrom nor reference thereto shall be published or delivered to
any other person or otherwise relied upon without our expressed written
consent.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement.
Very truly yours,
FOSTER PEPPER & SHEFELMAN, LLP
By: /s/ Kenneth E. Roberts
Kenneth E. Roberts
Portland, Oregon
EXHIBIT 23.1
Consent of Independent Certified Public Accountants
The Board of Directors
Lithia Motors, Inc. and Affiliated Companies:
We consent to the use of our reports incorporated herein by reference in Form
S-8 of Lithia Motors, Inc. Our report refers to a change in the method of
accounting for inventories, effective January 1, 1997, as discussed in note 1
to the consolidated financial statements.
/s/ KPMG Peat Marwick LLP
Portland, Oregon
December 11, 1998
EXHIBIT 99
LITHIA MOTORS, INC.
1998 EMPLOYEE STOCK BONUS PLAN
1. PURPOSE. The Lithia Motors, Inc. 1998 Employee Stock Bonus Plan (the
"Plan") is intended to provide the employees of Lithia Motors, Inc. (the
"Company") and its participating Subsidiaries an ownership interest in the
Company through the granting of shares of Common Stock of the Company.
2. DEFINITIONS. As used in this Plan:
"Board" means the Board of Directors of the Company.
"Common Stock" or "Stock" means the Class A Common Stock, without par
value, of the Company.
"Company" means Lithia Motors, Inc. an Oregon corporation.
"Employee" means any person who was in the Employment of an Employer on
December 1, 1998.
"Employer" means the Company and each its Subsidiaries which has been
designated by the Board as a participating employer in the Plan.
"Employment" means Employment as an Employee by the Company or a
Subsidiary as designated in such entity's payroll records. Any worker
treated as an independent contractor by the Company or any Subsidiary who is
later reclassified as a common-law employee shall not be in Employment during
any period in which such worker was treated by the Company or a Subsidiary as
an independent contractor.
"Plan" means the Lithia Motors, Inc. 1998 Employee Stock Bonus Plan, as
set forth herein, and all amendments hereto.
"Subsidiary" means any domestic or foreign corporation, limited
liability company, partnership or other form of business entity (other than
the Company) which, pursuant to Section 424(f) of the Code, is included in an
unbroken chain of entities beginning with the Company if, on December 1,
1998, each of the entities other than the last entity in the unbroken chain
owns at least a majority of the total combined voting power of all interests
in one of the other entities in such chain.
3. DURATION OF THE PLAN. The Plan shall become effective upon the
approval of the Plan by the Board and shall terminate when stock certificates
have been issued to all eligible Employees or December 31, 1999, whichever
occurs first.
<PAGE>
4. SHARES SUBJECT TO THE PLAN. The total number of shares of Common Stock
that may be granted under the Plan will not exceed 2000 shares and may be
originally issued shares, treasury shares, reacquired shares, shares bought
in the market, or any combination of the foregoing
5. ELIGIBILITY. Every full or part-time Employee who is employed by the
Company or a Subsidiary on December 1, 1998 is eligible to participate in the
Plan except for the following:
1. Corporate officers and directors of any Employer;
2. Employees covered by a collective bargaining agreement;
3. Persons employed on a temporary basis pursuant to a contract with a
third party or persons employed on a contract basis and deemed
an independent contractor by the Employer; and
4. Persons employed on an "on call" basis.
All determinations of eligibility shall be made by the Board in its
sole discretion pursuant to the terms of the Plan, and shall be final,
conclusive and binding on all persons and the Company.
6. GRANT OF SHARE. Upon adoption of the Plan by the Board, each eligible
Employee is granted one (1) share of stock of the Company pursuant to the
terms of the Plan.
7. OWNERSHIP AND DELIVERY OF SHARES. The Company, a brokerage firm or
other entity designated by the Company, shall deliver to each eligible
Employee a certificate for the number of shares of Common Stock issued to
such Employee hereunder as soon as practicable. Alternatively, in the
discretion of the Board, the stock certificate may be delivered to a
designated stock brokerage account maintained for such Employee and held in
"street name." Stock to be delivered to eligible Employees under the Plan
will be registered on the books and records of the Company in the name of
each Employee
8. NO RIGHTS AS A SHAREHOLDER UNTIL CERTIFICATE ISSUED. An Employee shall
not be deemed to be a shareholder, and shall not have any of the rights or
privileges of a shareholder until, a stock certificate has been issued in the
name of each Employee in accordance with the Plan.
9. TRANSFERABILITY The right of an Employee to receive Common Stock under
the Plan is not assignable or transferable.
10. ADMINISTRATION OF THE PLAN. Subject to the provisions of the Plan, the
Board shall have the plenary authority to (i) interpret the Plan, (ii) make
such rules as it deems necessary for the proper administration of the Plan,
(iii) make all other determinations necessary or advisable for the
administration of the Plan, and (iv) correct any defect or supply any
omission or reconcile any inconsistency in the Plan in the manner and to the
extent that the Board deems advisable. All determinations and decisions made
by the Board shall be made in its discretion pursuant to the provisions of
the Plan, and shall be final, conclusive and binding on all persons including
the Company and Employees.
11. AMENDMENT OF THE PLAN. The Board shall have the plenary authority to
amend the Plan.
12. REGULATORY APPROVALS AND COMPLIANCE. The Company's obligation to
deliver Common Stock under the Plan is at all times subject to all approvals
of and compliance with the (i) regulations of any applicable stock exchanges
(including NASDAQ and NYSE) and (ii) any governmental authorities required in
connection with the authorization, issuance, sale or delivery of such Stock,
as well as federal, state and foreign securities laws. In the event the
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Company is required to obtain from any commission or agency the authority to
issue any stock certificate hereunder, the Company shall seek to obtain such
authority. The inability of the Company to obtain from any such commission
or agency the authority which counsel for the Company deems necessary for the
lawful issuance of any such certificate shall relieve the Company from
liability to any Employee.
13. MISCELLANEOUS.
Headings. Any headings or subheadings in this Plan are inserted for
convenience of reference only and are to be ignored in the construction or
interpretation of any provisions hereof.
Gender and Tense. Any words herein used in the masculine shall be read
and construed in the feminine when appropriate. Words in the singular shall
be read and construed as though in the plural, and vice-versa, when
appropriate.
Governing Law. This Plan shall be governed and construed in accordance
with the laws of the State of Oregon to the extent not preempted by federal
law.
Severability. In the event that any provision of this Plan shall be
held illegal, invalid, or unenforceable for any reason, such provision shall
be fully severable, but shall not affect the remaining provisions of the
Plan, and the Plan shall be construed and enforced as if the illegal,
invalid, or unenforceable provision had not been included herein.
No Guarantee of Tax Consequences. The Company and Board, do not make
any commitment or guarantee that any tax treatment will apply or be available
to any person participating or eligible to participate in the Plan,
including, without limitation, any tax imposed by the United States or any
state thereof, any estate tax, or any tax imposed by a foreign government.
Company as Agent for the Employers. Each Employer, by adopting the
Plan, appoints the Company and the Board as its agents to exercise on its
behalf all of the powers and authorities hereby conferred upon the Company
and the Board by the terms of the Plan, including, but not by way of
limitation, the power to amend and terminate the Plan.
IN WITNESS WHEREOF, this Plan is hereby executed by a duly authorized officer
of the Company.
As approved by the Board of Directors of Lithia Motors, Inc on December 11,
1998.
Sidney B. DeBoer, Secretary
