As Filed with the Securities and Exchange Commission on December 30, 1998
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SONIC AUTOMOTIVE, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 56-2010790
(State or Other Jurisdiction (I.R.S. Employer
Of Incorporation or Organization) Identification No.)
5401 EAST INDEPENDENCE BOULEVARD 28212
P.O. Box 18747 (Zip Code)
CHARLOTTE, NORTH CAROLINA
(Address of Principal Executive Offices)
SONIC AUTOMOTIVE, INC. FORMULA STOCK OPTION PLAN FOR INDEPENDENT DIRECTORS
(Full Title of Plan)
MR. O. BRUTON SMITH
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
SONIC AUTOMOTIVE, INC.
5401 E. INDEPENDENCE BOULEVARD
P.O. BOX 18747
CHARLOTTE, NORTH CAROLINA 28212
(704) 532-3320
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
COPIES TO:
PETER J. SHEA, ESQ.
PARKER, POE, ADAMS & BERNSTEIN L.L.P.
2500 CHARLOTTE PLAZA, CHARLOTTE, NORTH CAROLINA 28244
TELEPHONE (704) 372-9000
<TABLE>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Title of
Securities Amount Proposed Maximum Proposed Maximum Amount
to be to be Offering Price Aggregate Of
Registered Registered Per Share Offering Price Registration Fee
Class A Common
Stock, par value
$0.01 per share 300,000 $14.50 $4,350,000 $1,285
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information) will be sent or given to employees
as specified by Securities and Exchange Commission Rule 428(b)(1). Such
documents need not be filed with the Securities and Exchange Commission either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents, which include the statement
of availability required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part
II hereof), taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act of 1933, as amended (the "Securities
Act").
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring to those documents. The information
incorporated by reference is considered to be part of this Registration
Statement, and information that we file later with the Securities and Exchange
Commission will automatically update and supersede this information. Sonic
Automotive, Inc. (the "Company," and sometimes referred to herein as the
"Registrant") incorporates by reference the documents listed below and any
future filings made with the Securities and Exchange Commission under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"):
(i) the Company's Annual Report on Form 10-K for its fiscal year ended
December 31, 1997 (File No. 1-13395);
(ii) the Company's Amended Annual Report on Form 10-K/A for the year
ended December 31, 1997;
(iii) the Company's Quarterly Report on Form 10-Q for its fiscal quarter
ended March 31, 1998;
(iv) the Company's Quarterly Report on Form 10-Q for its fiscal quarter
ended June 30, 1998;
(v) the Company's Quarterly Report on Form 10-Q for its fiscal quarter
ended September 30, 1998;
(vi) the Company's Current Reports on Form 8-K, filed the following
dates: March 30, 1998, July 9, 1998, and July 24, 1998;
(vii) the Company's Amended Current Report on Form 8-K/A, filed on July
24, 1998, amending its Current Report on Form 8-K filed on March 30,
1998;
(viii)the Company's Amended Current Report on Form 8-K/A, filed on August
20, 1998, amending its Current Report on Form 8-K filed on July 24,
1998;
(ix) the description of the Company's Class A Common Stock contained in
the Company's Registration Statement on Form 8-A, as amended, filed
with the SEC pursuant to Section 12 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"); and
(x) the Company's Definitive Proxy Materials dated November 2, 1998.
All documents subsequently filed by the Registrant pursuant to sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, 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 into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document, all or a portion of which is 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 other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or amended, to constitute a part of this Registration
Statement.
Item 6. Indemnification of Officers and Directors
2
<PAGE>
The Registrant's Bylaws effectively provide that the Registrant shall, to
the full extent permitted by Section 145 of the General Corporation Law of the
State of Delaware, as amended from time to time ("Section 145"), indemnify all
persons whom it may indemnify pursuant thereto. In addition, the Registrant's
Certificate of Incorporation eliminates personal liability of its directors to
the full extent permitted by Section 102(b)(7) of the General Corporation Law of
the State of Delaware, as amended from time to time ("Section 102(b)(7)").
Section 145 permits a corporation to indemnify its directors and officers
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlements actually and reasonably incurred by them in connection with any
action, suit or proceeding brought by a third party if such directors or
officers acted in good faith and in a manner they reasonably believed to be in,
or not opposed to, the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reason to believe their conduct was
unlawful. In a derivative action, indemnification may be made only for expenses
actually and reasonably incurred by directors and officers in connection with
the defense or settlement of an action or suit and only with respect to a matter
as to which they shall have acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made if such person shall have been
adjudged liable to the corporation, unless and only to the extent that the court
in which the action or suit was brought shall determine upon application that
the defendant officers or directors are reasonably entitled to indemnity for
such expenses despite such adjudication of liability.
Section 102(b)(7) provides that a corporation may eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for willful or negligent conduct
in paying dividends or repurchasing stock out of other than lawfully available
funds, or (iv) for any transaction from which the director derived an improper
personal benefit. No such provision shall eliminate or limit the liability of a
director for any act or omission occurring prior to the date when such provision
becomes effective.
The Company maintains insurance against liabilities under the Securities
Act for the benefit of its officers and directors.
Item 8. Exhibits
Exhibit
Number Description
------- -----------
4.1* Sonic Automotive, Inc. Formula Stock Option Plan For
Independent Directors (the "Plan") (incorporated by
reference to Exhibit 10.69 to the Company's Amended
Annual Report on Form 10-K/A for the year ended
December 31, 1997 (File No. 1-13395))
4.2* Form of Formula Stock Option Agreement
and Grant pursuant to the Sonic
Automotive, Inc. Formula Stock Option
Plan For Independent Directors (included
within the Plan)
5.1 Opinion of Parker, Poe, Adams &
Bernstein L.L.P. regarding the legality
of securities registered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Parker, Poe, Adams &
Bernstein L.L.P. (included in Exhibit
5.1 to this Registration Statement)
--------------------------
* Filed Previously
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement
(or most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
3
<PAGE>
fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing,
any increase or decrease in the volume of securities
offered (if the total dollar value of securities offered
would not exceed that which was registered), any
deviation from the high or low end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more that
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
registration statement is on Form S-3, Form S-8, or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission 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 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; and
(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, each filing of
the Registrant's annual report pursuant to Section 13(a) or 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 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 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 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, 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 Securities Act and will be governed by the final
adjudication of such issue.
[Signatures begin on next page]
4
<PAGE>
SIGNATURES
THE REGISTRANT. 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 Charlotte, State of North Carolina, on December 30,
1998.
Sonic Automotive, Inc.
BY: /s/ O. BRUTON SMITH
--------------------------------------
O. Bruton Smith
Chairman and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Sonic Automotive, Inc., do
hereby constitute and appoint Messrs. O. Bruton Smith, Bryan Scott Smith, and
Theodore M. Wright, each with full power of substitution, our true and lawful
attorney-in-fact and agent to do any and all acts and things in our names and in
our behalf in our capacities stated below, which acts and things either of them
may deem necessary or advisable to enable Sonic Automotive, Inc. to comply with
the Securities Act, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but not limited to, power and authority to
sign for any and all of us in our names, in the capacities stated below, any and
all amendments (including post-effective amendments) hereto and any subsequent
registration statement filed pursuant to Rule 462(b) under the Securities Act of
1933, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission; and we do
hereby ratify and confirm all that they shall do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
--------- ----- ----
/s/ O. BRUTON SMITH Chief Executive Officer (principle December 30,
__________________________________ executive officer) and Chairman 1998
O. Bruton Smith
/s/ B. SCOTT SMITH President, Chief Operating Officer and December 30,
__________________________________ Director 1998
B. Scott Smith
Chief Financial Officer, Vice
President-Finance, Treasurer, Secretary
/s/ THEODORE M. WRIGHT (Principle Financial and Accounting December 30,
__________________________________ Officer) and Director 1998
Theodore M. Wright
/s/ DENNIS D. HIGGINBOTHAM President -- Retail Operations and December 30,
__________________________________ Director 1998
Dennis D. Higginbotham
/s/ WILLIAM R. BROOKS
__________________________________ Director December 30,
William R. Brooks 1998
/s/ WILLIAM P. BENTON
__________________________________ Director December 30,
William P. Benton 1998
/s/ WILLIAM I. BELK
__________________________________ Director December 30,
William I. Belk 1998
</TABLE>
5
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
4.1* Sonic Automotive, Inc. Formula Stock Option Plan For Independent
Directors (the "Plan") (incorporated by reference to Exhibit 10.69
to the Company's Amended Annual Report on Form 10-K/A for the year
ended December 31, 1997 (File
No. 1-13395))
4.2* Form of Formula Stock Option Agreement
and Grant pursuant to the Sonic
Automotive, Inc. Formula Stock Option
Plan For Independent Directors (included
within the Plan)
5.1 Opinion of Parker, Poe, Adams &
Bernstein L.L.P. regarding the legality
of securities registered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Parker, Poe, Adams &
Bernstein L.L.P. (included in Exhibit
5.1 to this Registration Statement)
- ----------------------
* Filed Previously.
6
EXHIBIT 5.1
December 28, 1998
Board of Directors
Sonic Automotive, Inc.
5401 East Independence Boulevard
Charlotte, North Carolina 28212
Dear Sirs:
We are acting as counsel to Sonic Automotive, Inc., a Delaware corporation
(the "Company"), in connection with the preparation, execution, filing and
processing with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
the issuance and sale of up to 300,000 shares (the "Shares") of Class A Common
Stock, par value $.01 per share (the "Common Stock"), reserved for issuance
under the Company's Formula Stock Option Plan for Independent Directors (the
"Plan"). This opinion is furnished to you for filing with the Commission
pursuant to Item 601(b)(5) of Regulation S-K promulgated under the Act.
In our representation of the Company, we have examined the Registration
Statement, the Plan, the Company's Certificate of Incorporation and Bylaws, as
amended to date, all actions of the Company's Board of Directors recorded in the
Company's minute book, the form of certificate evidencing the Shares and such
other documents as we have considered necessary for purposes of rendering the
opinions expressed below.
Based upon the foregoing, we are of the following opinions:
1. The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware; and
2. The Shares proposed to be offered and sold by the Company under the
Plan have been duly authorized for issuance and, subject to the Registration
Statement becoming effective under the Act and to compliance with any applicable
state securities laws and to the issuance of such Shares in accordance with the
provisions of the Plan, the Shares will be, when so issued, legally issued,
fully paid and non-assessable shares of Common Stock of the Company.
The opinions expressed herein are limited to the laws of the State of
North Carolina, the General Corporation Law of the State of Delaware and the
Act.
Insofar as our opinion relates to the good standing and existence of the
Company, we have relied upon a certificate of good standing from the Secretary
of State of the State of
<PAGE>
Board of Directors
Sonic Automotive, Inc.
December 28, 1998
Page 2
Delaware with respect to the Company, no further investigation having been
performed by or requested of us.
We hereby consent to the use of this opinion letter as Exhibit 5.1 to the
Registration Statement. In giving this consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ PARKER, POE, ADAMS & BERNSTEIN LLP
--------------------------------------
Parker, Poe, Adams & Bernstein LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Sonic Automotive, Inc. on Form S-8 of our report dated March 2, 1998 (March 24,
1998 as to Notes 2 and 8), appearing in the Annual Report on Form 10-K of Sonic
Automotive, Inc. for the year ended December 31, 1997, and our reports dated May
11, 1998, May 22, 1998, and June 4, 1998, for Economy Cars, Inc., Hatfield
Automotive Group, and Casa Ford of Houston, Inc., respectively, appearing in the
Form 8-K (as amended) of Sonic Automotive, Inc. dated July 9, 1998.
/s/ DELOITTE & TOUCHE LLP
Charlotte, North Carolina
December 28, 1998
