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As filed with the Securities and Exchange Commission on September 15, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CSK AUTO CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 86-0765798
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
645 EAST MISSOURI AVENUE
PHOENIX, ARIZONA 85012
(Address of Principal Executive Offices, including Zip Code)
CSK AUTO CORPORATION
1996 ASSOCIATE STOCK OPTION PLAN
CSK AUTO CORPORATION
1996 EXECUTIVE STOCK OPTION PLAN
CSK AUTO CORPORATION
DIRECTORS STOCK PLAN
EXECUTIVE STOCK OPTION PROGRAM (2)
(Full Title of the Plans)
MAYNARD L. JENKINS
CSK AUTO CORPORATION
645 EAST MISSOURI AVENUE
PHOENIX, AZ 85012
(Name and Address of Agent for Service)
(602) 265-9200
(Telephone Number, Including Area Code, of Agent for Service)
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Copies to:
CHARLES K. MARQUIS, ESQ. RICHARD M. RUSSO, ESQ.
GIBSON, DUNN & CRUTCHER LLP GIBSON, DUNN & CRUTCHER LLP
200 PARK AVENUE 1801 CALIFORNIA STREET, SUITE 4100
NEW YORK, NY 10166-0193 DENVER, COLORADO 80202-2694
(212) 351-4000 (303)298-5700
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<TABLE>
<CAPTION>
=============================================================================================================================
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (1) PRICE (1) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
common stock, par value $.01
("Common Stock") (2).......... 1,026,300 N/A $16,402,613 $ 4,839
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock (3).............. 684,200 N/A $10,834,682 $ 3,196
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock (4).............. 50,000 N/A $ 1,022,000 $ 301
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock (5).............. 957,879 N/A $13,257,277 $ 3,911
- -----------------------------------------------------------------------------------------------------------------------------
Total............... 2,718,379 N/A $41,516,572 $12,247
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) These shares are offered under the Company's 1996 Associate Stock Option
Plan. Pursuant to Rule 457(h)(1), the filing fee for the 763,766 shares
subject to options that have been granted is calculated based upon the
weighted average of the various strike prices of such shares, which is
$14.45. Pursuant to Rule 457(h)(1), the filing fee for the 262,534 shares
subject to options that have not yet been granted is calculated based upon
the average high and low prices of the Common Stock reported on September
11, 1998, which is $20.44 per share.
(3) These shares are offered under the Company's 1996 Executive Stock Option
Plan. Pursuant to Rule 457(h)(1), the filing fee for the 404,359 shares
subject to options that have been granted is calculated based upon the
weighted average of the various strike prices of such shares, which is
$12.65. Pursuant to Rule 457(h)(1), the filing fee for the 279,841 shares
subject to options that have not yet been granted is calculated based upon
the average high and low prices of the Common Stock reported on September
11, 1998, which is $20.44 per share.
(4) These shares are offered under the Company's Directors Stock Plan. None of
the 50,000 shares registered have been granted. Pursuant to Rule
457(h)(1), the filing fee for these shares is calculated based upon the
average high and low prices of the Common Stock reported on September 11,
1998, which is $20.44 per share.
(5) These shares are offered under certain compensation agreements with
Maynard Jenkins and James Bazlen, which are collectively referred to
herein as the "Executive Stock Option Program." Pursuant to the
compensation agreements, Mr. Jenkins holds options to purchase 658,542
shares of Common Stock; of those options, 441,907 will be exercisable at
$12.04 per share, and 216,635 will be exercisable at $20.00 per share.
Pursuant to the compensation agreements, Mr. Bazlen holds options to
purchase 299,337 shares of Common Stock; all of Mr.
Bazlen's options are or will be exercisable at $12.04 per share.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information called for in Part
I of Form S-8 will be provided to participants in the Company's 1996 Associate
Stock Option Plan (the "Associate Plan"), the Company's 1996 Executive Stock
Option Plan (the "Executive Plan"), the Company's Directors Stock Plan (the
"Directors Plan") and the Company's Executive Stock Option Program. Such
information is omitted from this registration statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act") and the
Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Company heretofore filed with
the Securities and Exchange Commission (the "Commission") are hereby
incorporated in this Registration Statement by reference:
(1) The Company's latest annual report filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), that contains audited financial statements for the Company's
latest fiscal year for which such statements have been filed;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by Company's
latest annual report or prospectus referred to in (1) above;
(3) The description of the Common Stock set forth under the caption
"Description of Capital Stock" in the Company's effective registration
statement on Form S-1 (File No. 333-43211), together with any amendment
or report filed with the Commission for the purpose of updating such
description.
All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a) and (c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all such
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 filing
of such reports and documents.
Any statement contained herein or in a document 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 earlier statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provisions for the indemnification of officers and directors of corporations in
terms sufficiently broad to indemnify the officers and directors of the Company
under certain circumstances from liabilities (including reimbursement of
expenses incurred) arising under the Securities Act of 1933, as amended (the
"Securities Act").
As permitted by the DGCL, the Company's Restated Certificate of
Incorporation, as amended (the "Charter"), provides that, to the fullest extent
permitted by the DGCL, no director shall be liable to the Company or to its
stockholders for monetary damages for breach of his fiduciary duty as a
director. Delaware law does not permit the elimination of liability (i) for any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) in respect of certain unlawful
dividend payments or stock redemptions or repurchases, or (iv) for any
transaction from which the director derives an improper personal benefit. The
effect of this provision in the Charter is to eliminate the rights of the
Company and its stockholders (through stockholders' derivative suits on behalf
of the Company) to recover monetary damages against a director for breach of
fiduciary duty as a director thereof (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described in
clauses (i)-(iv), inclusive, above. These provisions will not alter the
liability of directors under federal securities laws.
In addition, the Charter provides that the Company may indemnify any
person who was or is a party or who was or is threatened to be made a party to
or is otherwise involved in any threatened, pending or completed action, suit or
proceeding (including, without limitation, one by or in the right of the Company
to procure judgment in its favor), whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director,
officer, employee or agent of the Company or is or was serving at the request of
the Company as a director, officer, employee or agent of any other corporation
or enterprise, from and against any and all expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person. The Charter also provides that the indemnification
provided in the Charter shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled and that the Company may maintain
insurance, at its expense, to protect itself and any director, officer, employee
or agent of the Company or any other corporation or enterprise against expense
liability or loss whether or not the Company would have the power to indemnify
such person against such expense, liability or loss under the DGCL or under the
Charter.
The Company's By-Laws (the "Bylaws") provide that the Company may
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 the Company) by reason of the fact that he is or was a director,
officer, employee or agent of the Company or is or was serving at the request of
the Company as a director, officer, employee or agent of any other corporation
or enterprise, against
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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 such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful.
The Bylaws also provide that the Company may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Company to procure
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted under similar
standards, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Company unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine that despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to be
indemnified for such expenses which the Court of Chancery of the State of
Delaware or the court in which such action was brought shall deem proper.
The Bylaws also provide that to the extent a director or officer of the
Company has been successful in the defense of any action, suit or proceeding
referred to in the previous paragraphs or in the defense of any claim, issue, or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith and that
indemnification provided for in the Bylaws shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by
reference to another filing of the Company with the Commission, each of the
following exhibits is filed herewith:
4.01 Restated Certificate of Incorporation of the Company,
incorporated herein by reference to Exhibit 3.01 of
the Company's annual report on Form 10-K, filed on
May 4, 1998 (File No. 001-13927).
4.02 Certificate of Correction of the Company,
incorporated herein by reference to Exhibit 3.02 of
the Company's annual report on Form 10-K, filed on
May 4, 1998 (File No.
001-13927).
4.03 By-Laws of the Company, incorporated herein by
reference to Exhibit 3.03 of the Company's annual
report on Form 10-K, filed on May 4, 1998 (File No.
001-13927).
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4.04 Form of Common Stock Certificate, incorporated herein
by reference to Exhibit 3.02 of the Company's
registration statement on Form S-1 (File No.
333-43211).
5.01 Opinion of Gibson, Dunn & Crutcher LLP.
16.01 Letter of Price Waterhouse LLP re Change in
Certifying Accountant, incorporated herein by
reference to Exhibit 16.01 of the Company's
registration statement on Form S-1 (File No.
333-43211).
23.01 Consent of Gibson, Dunn & Crutcher LLP (included in
Exhibit 5.1).
23.02 Consent of PricewaterhouseCoopers
LLP.
24.01 Power of Attorney (included on signature page of this
Registration Statement).
ITEM 9. UNDERTAKINGS.
(1) The undersigned Company hereby undertakes:
(a) 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 the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represents 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 (1)(a)(i) and (1)(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 this 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.
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(2) The undersigned Company 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, 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.
(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 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 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 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 of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all 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 Phoenix, State of Arizona, on this 15th day of
September, 1998.
CSK AUTO CORPORATION
By /s/ James Bazlen
------------------------
James Bazlen
President and Chief
Operating Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Don W.
Watson, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
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, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, 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, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Maynard Jenkins Chairman of the Board and September 15, 1998
- ---------------------------------------------- Chief Executive Officer
Maynard Jenkins (Principal Executive Officer)
/s/ James Bazlen President,
- ---------------------------------------------- Chief Operating Officer and Director September 15, 1998
James Bazlen
/s/ Don Watson Senior Vice President, Chief September 15, 1998
- ---------------------------------------------- Financial Officer and Treasurer
Don Watson (Principal Financial and Accounting
Officer)
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Jon P. Hedley
- ---------------------------------------------- Director September 15, 1998
Jon P. Hedley
/s/ Edward G. Lord, III
- ---------------------------------------------- Director September 15, 1998
Edward G. Lord, III
/s/ Christopher J. O'Brien
- ---------------------------------------------- Director September 15, 1998
Christopher J. O'Brien
/s/ Charles J. Philippin
- ---------------------------------------------- Director September 15, 1998
Charles J. Philippin
/s/ Robert Smith
- ---------------------------------------------- Director September 15, 1998
Robert Smith
/s/ Christopher J. Stadler
- ---------------------------------------------- Director September 15, 1998
Christopher J. Stadler
/s/ Jules Trump
- ---------------------------------------------- Director September 15, 1998
Jules Trump
/s/ Eddie Trump
- ---------------------------------------------- Director September 15, 1998
Eddie Trump
/s/ Savio W. Tung
- ---------------------------------------------- Director September 15, 1998
Savio W. Tung
/s/ John F. Antioco
- ---------------------------------------------- Director September 15, 1998
John F. Antioco
</TABLE>
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EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
4.01 Restated Certificate of Incorporation of the Company,
incorporated herein by reference to Exhibit 3.01 of the
Company's annual report on Form 10-K, filed on May 4, 1998
(File No. 001-13927).
4.02 Certificate of Correction of the Company, incorporated herein
by reference to Exhibit 3.02 of the Company's annual report on
Form 10-K, filed on May 4, 1998 (File No. 001-13927).
4.03 By-Laws of the Company, incorporated herein by reference to
Exhibit 3.03 of the Company's annual report on Form 10-K, filed
on May 4, 1998 (File No. 001-13927).
4.04 Form of Common Stock Certificate, incorporated herein by
reference to Exhibit 3.02 of Company's registration statement
on Form S-1 (File No.
333-43211).
5.01 Opinion of Gibson, Dunn & Crutcher.
16.01 Letter of Price Waterhouse LLP re Change in Certifying
Accountant, incorporated herein by reference to Exhibit 16.01
of the Company's registration statement on Form S-1 (File No.
333-43211).
23.01 Consent of Gibson, Dunn & Crutcher (included in Exhibit 5.01).
23.02 Consent of PricewaterhouseCoopers LLP.
24.01 Power of Attorney (included on signature page of this
Registration Statement).
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Exhibit 5.01
[LETTERHEAD OF GIBSON, DUNN & CRUTCHER LLP]
September 15, 1998
(303) 298-5700 C 18591-00005
CSK Auto Corporation
645 East Missouri Avenue
Phoenix, Arizona 85012
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We refer to an aggregate of 2,718,379 shares of Common Stock, par value
$0.01 per share, of CSK Auto Corporation, a Delaware corporation (the
"Company"), which are the subject of a registration statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), which shares (the "Shares") may be offered and sold under the CSK Auto
Corporation 1996 Executive Stock Option Plan, the CSK Auto Corporation 1996
Associate Stock Option Plan and the CSK Auto Corporation Directors Stock Plan
(together, the "Plans"), and under certain compensation agreements with Maynard
Jenkins and James Bazlen, which constitute the Company's Executive Stock Option
Program (the "Program").
We have examined the original, or a photostatic or certified copy, of such
records of the Company, certificates of officers of the Company and of public
officials and such other documents as we have determined relevant and necessary
as the basis for the opinion set forth below. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
<PAGE> 2
CSK Auto Corporation
September 15, 1998
Page 2
Based upon our examination mentioned above, we are of the opinion that the
Shares have been validly authorized for issuance and, when (a) the Registration
Statement has become effective under the Act, (b) the Shares are issued and
sold in accordance with the terms set forth in the Registration Statement and
in the Plans and the Program, including, in the case of Shares issued pursuant
to the exercise of options issued under the Plans or the Program, the payment
for the underlying Shares, and (c) the pertinent provisions of any applicable
state securities laws have been complied with, the Shares so issued will be
legally issued and will be fully paid and nonassessable.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement and to the reference to our firm appearing on the cover of the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Act or the General Rules and Regulations of the Commission
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
<PAGE> 1
Exhibit 23.02
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our reports dated April 10, 1998 and December 23, 1997 on our audits
of the consolidated financial statements and financial statement schedules of
CSK Auto Corporation as of February 1, 1998 and February 2, 1997 and for each of
the three years ended February 1, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Phoenix, Arizona
September 11, 1998
