As Filed with the Securities and Exchange Commission on September 20, 2000
Registration No. 333-
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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. EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED AS OF JUNE 5, 2000
(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:
Gary C. Ivey, Esq.
Parker, Poe, Adams & Bernstein L.L.P.
2500 Charlotte Plaza, Charlotte, North Carolina 28244
Telephone (704) 372-9000
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Maximum
Securities to be Offering Price
to be Registered Registered Per Share(1)
Class A Common Stock, 600,000 shares (2) $ 9.4375
par value $0.01 per
share
Proposed Maximum Amount
Aggregate Of
Offering Price Registration Fee
$2,831,250.00(2) $747.45(2)
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933 (the "Securities
Act"), based upon the average of the high and low prices of the
Registrant's Class A Common Stock reported on the New York Stock Exchange
on September 19, 2000 which prices were $9.50 and $9.375, respectively.
(2) The registrant previously filed a Registration Statement on Form S-8 (File
No. 333-49113) on April 1, 1998 (the "April 1998 Form S-8") that covered a
total of 300,000 shares of its Class A Common Stock. As a result of a two-
for-one stock split that occurred in January of 1999, the April 1998 Form
S-8 now covers a total of 600,000 shares of its Class A Common Stock.
Pursuant to Instruction E to Form S-8 and the telephonic interpretations of
the Securities and Exchange Commission, Section G of the Division of
Corporate Finance's Manual of Publicly Available Telephone Interpretations
(July 1997), as indicated below, the Company is hereby moving 300,000
shares previously registered on the April 1998 Form S-8 to this Form S-8
Registration Statement. In conjunction with the April 1998 Form S-8, the
Company paid a filing fee of $1,441.00, $720.50 of which covered the
300,000 shares the Registrant is now moving to this Registration Statement
on Form S-8. Consequently, the filing fee of $747.45 is being paid with
this Registration Statement only on the 300,000 additional shares now being
registered.
This Registration Statement also constitutes a post-effective amendment to the
April 1998 Form S-8 to reduce by 300,000 the number of shares registered
thereby, and to move those shares to a new Registration Statement on Form S-8.
<PAGE>
This Registration Statement relates to the registration of additional
securities relating to an employee benefit plan for which registration
statements filed on Form S-8 (File Nos. 333-49113, 333-69907 and 333-81059) were
filed by the Company with the Securities and Exchange Commission on April 1,
1998, December 30, 1998 and June 18, 1999, respectively. The contents of the
April 1, 1998, December 30, 1998 and June 18, 1999 registration statements,
including any amendments thereto, are incorporated herein by this reference.
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.
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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, 1999 (File No. 1-13395);
(ii) the Company's Quarterly Report on Form 10-Q for its fiscal quarter
ended March 31, 2000;
(iii) the Company's Quarterly Report on Form 10-Q for its fiscal quarter
ended June 30, 2000;
(iv) the Company's Definitive Proxy Materials dated May 1, 2000;
(v) the Company's Amended Current Report on Form 8-K/A, filed on
January 18, 2000, relating to its Current Report on Form 8-K filed
on November 19, 1999;
(vi) the Company's Amended Current Report on Form 8-K/A, filed on
January 27, 2000, relating to its Current Report on Form 8-K filed
on December 22, 1999;
(vii) the Company's Current Report on Form 8-K filed on September 15,
2000; and
(viii) 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 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
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<PAGE>
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
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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
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Exhibit
Number Description
------ -----------
4.1 Sonic Automotive, Inc. Employee Stock Purchase Plan
Amended and Restated as of June 5, 2000
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 KPMG, LLP
23.3 Consent of Parker, Poe, Adams & Bernstein L.L.P. (included
in Exhibit 5.1 to this Registration Statement)
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<PAGE>
Item 9. Undertakings
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(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 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]
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<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
September 15, 2000
Sonic Automotive, Inc.
BY: /s/ O. Bruton Smith
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O. Bruton Smith
Chief Executive Officer and Chairman
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>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Chief Executive Officer (principle executive officer), September 15, 2000
/s/ O. Bruton Smith Chairman and Director
----------------------
O. Bruton Smith
/s/ Thomas A. Price Vice Chairman and Director September 15, 2000
----------------------
Thomas A. Price
/s/ B. Scott Smith President, Chief Operating Officer and Director September 15, 2000
----------------------
B. Scott Smith
Chief Financial Officer, Vice President-Finance, September 15, 2000
Treasurer (Principle Financial and Accounting Officer)
/s/ Theodore M. Wright and Director
----------------------
Theodore M. Wright
/s/ Jeffrey C. Rachor Executive Vice President of Retail Operations and Director September 15, 2000
----------------------
Jeffrey C. Rachor
/s/ William R. Brooks Director September 15, 2000
----------------------
William R. Brooks
/s/ William P. Benton Director September 15, 2000
----------------------
William P. Benton
/s/ William I. Belk Director September 15, 2000
----------------------
William I. Belk
/s/ H. Robert Heller Director September 15, 2000
----------------------
H. Robert Heller
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
------ -----------
4.1 Sonic Automotive, Inc. Employee Stock Purchase Plan
Amended and Restated as of June 5, 2000
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 KPMG, LLP
23.3 Consent of Parker, Poe, Adams & Bernstein L.L.P. (included
in Exhibit 5.1 to this Registration Statement)
6
