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As filed Electronically with the Securities and Exchange Commission on April 1,
1998 Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 25049
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 E. INDEPENDENCE BOULEVARD
CHARLOTTE, NORTH CAROLINA 28212
(Address of Principal Executive Offices) (Zip Code)
SONIC AUTOMOTIVE, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the 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>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------- -------------------- --------------------- --------------------- --------------------
Title of Amount Proposed Maximum Proposed Maximum Amount
Securities to be Offering Price Aggregate Offering of
to be Registered Per Share Price Registration Fee
Registered
- ---------------------- -------------------- --------------------- --------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock, par 300,000 $16.28 $4,884,000 1,441.00
value $0.01 per share
- ---------------------- -------------------- --------------------- --------------------- --------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuent to Rule 457 (h) under the Securities Act of 1933, based upon
the average of the high and low prices of the Registrant's Common Stock
reported on the New York Stock Exchange on March 25, 1998, which prices
were $16.625 and $15.9375 respectively.
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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 Rule 428(b)(1) of the Securities and Exchange
Commission (the "Commission") . 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 hereof, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act of 1933, as
amended (the "Act").
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of Sonic Automotive, Inc. (the
"Registrant") have been filed with the Commission and are hereby incorporated in
this Registration Statement by reference:
(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 Current Report on Form 8-K, dated March
30,1998;
(iii) the description of the 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")
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
2
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statement so modified or superseded shall not be deemed, except as so modified
or amended, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not Applicable
Item 5. Interests on Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Officers and Directors
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 attorney's fees), judgments, fines and
amounts paid in settlements actually and reasonably incurred by them in
connection with any actions, 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 interest 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
Act for the benefit of its officers and directors.
3
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Item 7. Exemption from Registration Claimed
Not Applicable
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4.1* Sonic Automotive, Inc. Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.35 to the
Registration Statement on Form S-1 (File No.
333-33295) of the Company).
4.2 Form of the Employee Stock Purchase Option Agreement
and Grant Pursuant to the Plan.
5.1 Opinion of Parker, Poe, Adams & Bernstein L.L.P.
regarding the legality of the securities registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Parker, Poe, Adams & Bernstein LLP
(included in Exhibit 5.1 to this Registration
Statement).
24 Power of Attorney (included on the signiture page to
this Registration Statement).
- ----------------------
* Filed Previously
</TABLE>
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 the
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (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;
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;
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in 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; 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 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 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 Act and will be governed by the final adjudication of
such issue.
[Signatures begin on next page]
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SIGNATURES
THE REGISTRANT. 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 Charlotte, State of North Carolina, on March 31,
1998.
SONIC AUTOMOTIVE, INC.
BY:/s/Theodore M. Wright
---------------------------------------------------
Theodore M. Wright, Chief Financial Officer, Vice
President-Finance, Treasurer, Secretary and Director
We, the undersigned directors and officers of Sonic Automotive, Inc., do
hereby constitute and appoint Mr. Theodore M. Wright 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 may be deemed
necessary or advisable to enable Sonic Automotive, Inc. to comply with the
Securities and Exchange Act of 1933, as amended, and any rules, regulations and
requirements of the Securities Exchange Commission, in connection with
Registration Statement, including specifically, but not limitied 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
we do hereby ratify and confirm all that he shall do or cause to be done by
virtue hereof.
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>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ O. Bruton Smith Chief Executive Officer (principle executive March 31, 1998
- ------------------------- officer) and Chairman
O. Bruton Smith
/s/ B.Scott Smith President, Chief Operating Officer and Director March 31,1998
- -------------------------
B. Scott Smith
/s/ Theodore M. Wright Chief Financial Officer, Vice March 31, 1998
- ------------------------- President-Finance, Treasurer, Secretary
Theodore M. Wright (Principle Financial and Accounting Officer)
and Director
/s/ Nelson E. Bowers, II Executive Vice President And a Director March 31, 1998
- -------------------------
Nelson E. Bowers
/s/ William R. Brooks Director March 31, 1998
- -------------------------
William R. Brooks
/s/ William P. Benton Director March 31, 1998
- -------------------------
William P. Benton
/s/ William I. Belk Director March 31, 1998
- -------------------------
William I. Belk
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4.1* Sonic Automotive, Inc. Employee Stock Purchase Plan (the "Plan")
(incorporated by reference to Exhibit 10.35 to the
Registration Statement on Form S-1 (File No.
333-33295) of the Company).
4.2 Form of Employee Stock Purchase Option Agreement and
Grant Pursuant to the Plan.
5.1 Opinion of Parker, Poe, Adams & Bernstein LLP
regarding the legality of the 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).
24 Power of Attorney (included on the signature page to
this Registration Statement).
- -----------------
* Filed Previously
</TABLE>
7
OPTION GRANT PURSUANT TO
THE SONIC AUTOMOTIVE, INC. EMPLOYEE STOCK PURCHASE PLAN
This Option is granted as of January 1, 1998 to _____________________
pursuant to the terms and conditions of the Sonic Automotive, Inc. Employee
Stock Purchase Plan (the "Plan"). You are hereby granted an option to purchase
_____ shares of the Class A Common Stock, par value $.01 per share, of Sonic
Automotive, Inc.
This option will be exercised automatically on a quarterly basis in
accordance with the Plan at an exercise price equal to the lesser of (a) 85% of
the fair market value of the Class A Common Stock as of January 1, 1998, or (b)
85% of the fair market value of the Class A Common Stock on the applicable
exercise date.
Unless earlier terminated pursuant to the Plan, this option will
expire December 31, 1998.
This option is not transferable by you other than by will or the laws
of descent and distribution.
This option has been granted in compliance with the terms of the Plan.
In the event of a conflict between the terms of this option grant and the terms
of the Plan, the terms of the Plan shall control.
SONIC AUTOMOTIVE, INC.
By:
_________________________________
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EXHIBIT 5.1
March 31, 1998
Board of Directors
Sonic Automotive, Inc.
5401 East Independence Boulevard
Charlotte, North Carolina
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 Employee Stock Purchase Plan (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 Amended and Restated 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 opinion:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware.
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 Blue Sky laws and to the
issuance of such Shares in accordance with the provisions of
the Plan, the Shares will be legally issued, fully paid and
non-accessable 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.
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,
PARKER, POE, ADAMS & BERNSTEIN L.L.P.
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.
Deloitte & Touche LLP
Charlotte, North Carolina
March 30, 1998
