<PAGE>
Registration No._________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FirstAmerica Automotive, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 88-0206732
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
601 Brannan Street
San Francisco, CA 94107
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(Address of principal executive offices) (Zip code)
FirstAmerica Automotive, Inc.
1997 Stock Option Plan
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(Full title of the plan)
David J. Moeller, Acting Principal Financial and Accounting Officer
FirstAmerica Automotive, Inc.
601 Brannan Street
San Francisco, CA 94107
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (415) 284-0444.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Title of Proposed maximum Proposed maximum
Securities to be Amount to be offering price aggregate offering Amount of
registered(1) registered(2) per share(3) price(3) registration fee
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FirstAmerica Automotive, Inc.
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1997 Stock Option Plan
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<S> <C> <C> <C> <C>
Class A Common Stock 1,500,000 $0.98 $1,470,000.00
Par Value $0.00001
TOTALS 1,500,000 $1,470,000.00 $408.66
</TABLE>
(1) The securities to be registered include options to acquire Common Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any
stock split, stock dividend or similar transaction.
(3) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The offering price is calculated using the book value of
the shares computed as of September 30, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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FirstAmerica Automotive, Inc. (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended December 31, 1998 as filed with the Securities and
Exchange Commission on March 31, 1999.
(b) 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 the registrant document
referred to in (a) above.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
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
documents.
Item 4. Description of Securities
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The class of securities to be offered is Class A Common Stock, par
value $0.00001.
Holders of Class A Common Stock are, together with holders of Class B
Common Stock, entitled to one vote for each share held of record by them on all
matters submitted to a vote of the stockholders, including the election of all
directors; provided, however, that one director is elected by the holders of
Class B Common Stock, voting separately as a class (the "Class B Director").
Voting on the election of directors is not cumulative. The Class A Common Stock
is not entitled to any preemptive or other subscription rights, and does not
have any redemption or sinking fund provisions. The Class A Common Stock is
convertible, at the option of the holder thereof, into Class C Common Stock, a
non-voting stock.
In general, subject to the payment of cumulated dividends on preferred
stock designated as 8% cumulative redeemable preferred stock (the "8% Preferred
Stock"), holders of Class A Common Stock are entitled to receive dividends when
and as declared by the Board of Directors out of funds legally available
therefor, provided the Class B Director has approved such dividend. However,
under certain circumstances the Company is prohibited from paying dividends on
its Common Stock pursuant to the terms of the: (A) Stockholders' Agreement dated
July 11, 1997, by and among the Company and its stockholders, Thomas Price,
Donald Strough, Steven Hallock, Fred Cziska, Al Babbington, John Driebe,
Embarcadero Automotive, LLC, Raintree Capital LLC, BB Investments and certain
affiliates of Trust Company of the West, including any amendments thereto, and
(B) Securities Purchase Agreement dated as of July 11,
<PAGE>
1997, by and among the Company, certain of its wholly-owned subsidiaries and
Trust Company of the West and certain of its affiliates, including any amendment
thereto.
Upon any voluntary or involuntary liquidation, the holders of Class A
Common Stock are entitled to share in all net assets of the Company remaining
available for distribution to stockholders after payment of all liabilities and
the payment of liquidation preferences to each series of preferred stock. The
liquidation preference of each series of preferred stock is as follows: (A) the
holders of 8% Preferred Stock are entitled to receive a payment of $1,000 per
share, in addition to any accumulated and unpaid dividends thereon, and (B) the
holders of preferred stock designated as redeemable preferred stock are entitled
to receive $1,160 per share, increased by $80 per share on each annual
anniversary following June 30, 1998; provided, however, that such amount shall
not exceed $1,720 per share (i.e., the last increase shall be on June 30, 2005).
The Board of Directors is authorized to determine and alter the
rights, preferences, privileges and restrictions granted to or imposed upon any
wholly unissued series of preferred stock and to increase or decrease (but not
below the number of shares then outstanding) the number of shares of any such
series subsequent to the issue of shares of such series. Rights granted to any
series of preferred stock may create stock which ranks senior to Class A Common
Stock with respect to the payment of dividends and the distribution of assets on
liquidation. The Board of Directors, without stockholder approval, can issue
preferred stock with voting and conversion rights which could adversely affect
the voting power of the holders of Class A Common Stock. The issuance of
preferred stock could have the effect of delaying, deferring or preventing a
change in control of the Company.
There is no public trading market for the Class A Common Stock.
Item 5. Interests of Named Experts and Counsel
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Inapplicable.
Item 6. Indemnification of Directors and Officers
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Section 102(b) of the Delaware General Corporation Law authorizes a
corporation to provide in its Certificate of Incorporation that a director of
the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this statute does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or rescission. The statute has no effect on a director's duty of
loyalty or liability for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, illegal payment of
dividends or stock redemptions or repurchases, or for any transaction from which
the director derives an improper personal benefit. As permitted by the statute,
the Company has adopted provisions in its Certificate of Incorporation which
eliminate to the fullest extent permissible under Delaware law the personal
liability of its directors to the Company and its stockholders for monetary
damages for breach of their fiduciary duties.
<PAGE>
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers, directors, employees and agents of
a corporation. The Bylaws of the Company provide for indemnification of its
directors, officers, employees and agents to the full extent permitted under
Delaware law, including those circumstances in which indemnification would
otherwise be discretionary under Delaware law; provided, however, that with
respect to actions, suits or proceedings initiated by any such person, the
Company will indemnify such person only if certain circumstances are satisfied.
The Company's Bylaws also empower it to enter into indemnification agreements
with its directors and officers and to purchase insurance on behalf of any
person whom it is required or permitted to indemnify. However, the Company has
not entered into any such indemnification agreements with its directors and
officers.
Section 145 of the General Corporation Law of the State of Delaware
provides for indemnification in terms sufficiently broad to indemnify such
individuals, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933, as
amended (the "Securities Act").
Item 7. Exemption From Registration Claimed
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Inapplicable.
Item 8. Exhibits
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See Exhibit Index.
Item 9. Undertakings
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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 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;
provided, however, that paragraphs (1)(i) and (l)(ii) do not apply if the
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information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
<PAGE>
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.
(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.
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.
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.
<PAGE>
SIGNATURE
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Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 San Francisco, State of California, on
November 16, 1999.
FirstAmerica Automotive, Inc.
By: /s/ David J. Moeller
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David J. Moeller, Acting Principal
Financial and Accounting Officer
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SIGNATURES AND POWER OF ATTORNEY
--------------------------------
The officers and directors of FirstAmerica Automotive, Inc. whose
signatures appear below, hereby constitute and appoint David J. Moeller and
Thomas A. Price, and each of them, their true and lawful attorneys and agents,
with full power of substitution, each with power to act alone, to sign and
execute on behalf of the undersigned any amendment or amendments to this
registration statement on Form S-8, and each of the undersigned does hereby
ratify and confirm all that each of said attorney and agent, or their or his
substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Thomas A. Price President, Chief Executive Officer November 16, 1999
- ---------------------------------- and Director -----------------
Thomas A. Price (Principal Executive Officer)
/s/ David J. Moeller Acting Principal Financial and November 16, 1999
- ---------------------------------- Accounting Officer -----------------
David J. Moeller (Principal Financial and Accounting
Officer)
/s/ Donald V. Strough Chairman and Director November 16, 1999
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Donald V. Strough
/s/ W. Bruce Bercovich Secretary and Director November 16, 1999
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W. Bruce Bercovich
Director
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Jean-Marc Chapus
/s/ H. Robert Heller Director November 15, 1999
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H. Robert Heller
</TABLE>
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EXHIBIT INDEX
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<TABLE>
<C> <S>
4.1 Amended and Restated Certificate of Incorporation of the Company, as amended, filed with
the Secretary of State of the State of Delaware on July 8, 1997, is incorporated by
reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K, as filed with the
Securities Exchange Commission on May 14, 1998 (No. 2-97254-NY).
4.2 Bylaws of the Company are incorporated by reference to Exhibit 4.2 to the Company's
Registration Statement on Form S-8, as filed with the Securities Exchange Commission on
March 16, 1999 (No. 333-74505).
4.3 Stockholders' Agreement dated July 11, 1997, by and among the Company and its
stockholders, Thomas Price, Donald Strough, Steven Hallock, Fred Cziska, Al Babbington,
John Driebe, Embarcadero Automotive, LLC, Raintree Capital LLC, BB Investments and
certain affiliates of Trust Company of the West, is incorporated by reference to Exhibit
4.1 to the Company's Annual Report on Form 10-K, as filed with the Securities Exchange
Commission on May 14, 1998 (No. 2-97254-NY).
4.4 Amendment No. 1 to the Stockholder's Agreement dated as of October 13, 1998, by and
among the Company, Thomas A. Price, Donald Strough and certain affiliates of Trust
Company of the West is incorporated by reference to Exhibit 4.5 to the Company's
Registration Statement on Form S-8, as filed with the Securities Exchange Commission on
March 16, 1999 (No. 333-74505).
4.5 Agreement and Plan of Merger and Reorganization dated October 31, 1999 among Sonic
Automotive, Inc., FAA Acquisition Corp., the Company, and certain of the stockholders of
the Company is incorporated by reference to Exhibit 2.2 to the Company's Quarterly
Report on Form 10-Q, as filed with the Securities Exchange Commission on November 15,
1999 (No. 001-15219).
5 Opinion re legality.
23.1 Consent of Counsel (included in Exhibit 5).
23.2 Consent of KPMG LLP.
24 Power of Attorney (included in signature pages to this registration statement).
</TABLE>
<PAGE>
EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-833-2000 Fax: 650-327-3699 www.graycary.com
November 16, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for FirstAmerica Automotive, Inc., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 1,500,000 shares of the
Common Stock, $0.00001 par value, of the Company which may be issued pursuant to
the exercise of options granted under the FirstAmerica Automotive, Inc. 1997
Stock Option Plan (the "Plan").
We have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters
of Delaware corporation law, we have based our opinion solely upon our
examination of such laws and the rules and regulations of the authorities
administering such laws, all as reported in standard, unofficial compilations.
We have not obtained opinions of counsel licensed to practice in jurisdictions
other than the State of California.
Based on such examination, we are of the opinion that the 1,500,000 shares of
Common Stock which may be issued upon exercise of options and purchase rights
granted under the Plan are duly authorized shares of the Company's Common Stock,
and, when issued against receipt of the consideration therefor in accordance
with the provisions of the Plan, will be validly issued, fully paid and
nonassessable. We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich LLP
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GRAY CARY WARE & FREIDENRICH LLP
<PAGE>
EXHIBIT 23.2
[LETTERHEAD OF KPMG]
Three Embarcadero Center, San Francisco, CA 94111
Phone: (415) 951-0100
INDEPENDENT AUDITORS' CONSENT
The Board of Directors and Stockholders
FirstAmerica Automotive, Inc.
We consent to the inclusion in the Registration Statement of FirstAmerica
Automotive, Inc. on Form S-8 of (i) our report dated March 19, 1999 on the
consolidated financial statements of FirstAmerica Automotive, Inc. as of
December 31, 1998 and 1997 and for each of the years in the three-year period
ended December 31, 1998; (ii) our report dated September 3, 1998 on the
financial statements of Burgess Honda as of September 30, 1997 and 1996 and for
each of the years in the three-year period ended September 30, 1997; (iii) our
report dated December 15, 1998 on the financial statements of Vacation Motors
(dba Concord Toyota) as of September 30, 1998 and December 31, 1997 and the nine
month period ended September 30, 1998 and the years ended December 31, 1997 and
1996; (iv) our audit report dated March 15, 1999 on the financial statements of
DSW & Associates, Inc. (dba Autotown) as of December 31, 1998 and 1997 and the
two years then ended.
/s/ KPMG LLP
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November 16, 1999
