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As filed with the Securities and Exchange Commission on August 27, 1999.
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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
1999 EMPLOYEE STOCK OPTION PLAN
(Full Title of the Plan)
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)
Copies to:
RICHARD M. RUSSO, Esq. DAVID I. SCHILLER, Esq.
Gibson, Dunn & Crutcher LLP Gibson, Dunn & Crutcher LLP
1801 California Street, Suite 4100 1717 Main Street, Suite 5400
Denver, Colorado 80202-2641 Dallas, Texas 75201
(303) 298-5700 (214) 698-3100
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE (1) PRICE (1) REGISTRATION FEE
------------------- ------------ -------------------- ------------------ ----------------
<S> <C> <C> <C> <C>
common stock, par value $.01
("Common Stock")
(2)............................. 750,000 $23.56 $17,670,000 $4,915
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) The shares are offered under the CSK Auto Corporation 1999 Employee Stock
Option Plan. 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 August 23, 1999, which is $23.56 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 prospectus for the CSK
Auto Corporation 1999 Employee Stock Option Plan (the "Plan"). 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
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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.
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
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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 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:
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4.01 CSK Auto Corporation 1999 Employee Stock Option Plan,
incorporated herein by reference to Appendix C of the
Company's Proxy Statement to Shareholders dated May 12, 1999.
4.02 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 April 28, 1999.
4.03 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 April 28, 1999 (File No. 001-13927).
4.04 Amended and Restated 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 April 28, 1999 (File No.
001-13927).
4.05 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
23.01 Consent of Gibson, Dunn & Crutcher LLP (included as part of
Exhibit 5.01)
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;
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(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.
(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 26th day of
August, 1999.
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 August 26, 1999
- -------------------------------- Chief Executive Officer
Maynard Jenkins (Principal Executive Officer)
/s/ James Bazlen President, August 26, 1999
- -------------------------------- Chief Operating Officer and
James Bazlen Director
/s/ Don Watson Senior Vice President, Chief
- -------------------------------- Financial Officer and Treasurer August 26, 1999
Don Watson (Principal Financial and
Accounting Officer)
</TABLE>
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Signature Title Date
--------- ----- ----
/s/ Morton Godlas
- ---------------------------------- Director August 26, 1999
Morton Godlas
/s/ James O. Egan
- ---------------------------------- Director August 26, 1999
James O. Egan
/s/ Christopher J. O'Brien
- ---------------------------------- Director August 27, 1999
Christopher J. O'Brien
/s/ Charles J. Philippin
- ---------------------------------- Director August 26, 1999
Charles J. Philippin
/s/ Robert Smith
- ---------------------------------- Director August 27, 1999
Robert Smith
/s/ Christopher J. Stadler
- ---------------------------------- Director August 26, 1999
Christopher J. Stadler
/s/ Jules Trump
- ---------------------------------- Director August 26, 1999
Jules Trump
/s/ Eddie Trump
- ---------------------------------- Director August 27, 1999
Eddie Trump
- ---------------------------------- Director August , 1999
Savio W. Tung
- ---------------------------------- Director August , 1999
John F. Antioco
/s/ Charles K. Marquis
- ---------------------------------- Director August 27, 1999
Charles K. Marquis
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EXHIBIT INDEX
Exhibit Number Description
4.01 CSK Auto Corporation 1999 Employee Stock Option Plan,
incorporated herein by reference to Appendix C of the
company's Proxy Statement to Shareholders dated May 12, 1999.
4.02 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 April 28, 1999
(File No. 001-13927).
4.03 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 April 28, 1999 (File No. 001-13927).
4.04 Amended and Restated 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 April 28, 1999 (File No.
001-13927).
4.05 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 LLP
23.01 Consent of Gibson, Dunn & Crutcher LLP (included as part of
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 5.02
[LETTERHEAD OF GIBSON, DUNN & CRUTCHER LLP]
August 27, 1999
(303) 298-5700 C 18591-00018
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 750,000 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 1999 Employee Stock Option Plan (the "Plan").
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.
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
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CSK Auto Corporation
August 27, 1999
Page 2
in the Registration Statement and in the Plan, including, in the case of Shares
issued pursuant to the exercise of options issued under the Plan, 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
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Exhibit 23.02
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statement of
CSK Auto Corporation relating to the CSK Auto Corporation 1999 Employee Stock
Option Plan on Form S-8 (Registration No.333-________) of our report dated April
2, 1999 on our audits of the consolidated financial statements of CSK Auto
Corporation and subsidiaries as of January 31, 1999 and February 1, 1998, and
for each of the three years in the period ended January 31, 1999.
PRICEWATERHOUSECOOPERS LLP
August 27, 1999
