As filed with the Securities and Exchange Commission on May 8, 2015
Registration No. 333-
UNITED STATES
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)
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Delaware |
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56-2010790 |
(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification No.) |
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4401 Colwick Road
Charlotte, North Carolina |
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28211 |
(Address of Principal Executive Offices) |
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(Zip Code) |
Sonic Automotive, Inc. 2012 Stock Incentive Plan,
as amended and restated effective February 11, 2015
(Full title of the plan)
Stephen K.
Coss, Esq.
Senior Vice President and General Counsel
Sonic Automotive, Inc.
4401 Colwick Road
Charlotte, North Carolina 28211
(Name and address of agent for service)
(704) 566-2400
(Telephone number, including area code, of agent for service)
Copy to:
James R.
Wyche, Esq.
Moore & Van Allen PLLC
100 North Tryon Street, Suite 4700
Charlotte, North Carolina 28202-4003
(704) 331-1000
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting
company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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x |
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Accelerated filer |
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¨ |
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Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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¨ |
CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered |
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Amount
to be registered
(1) |
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Proposed
maximum offering
price per share (2) |
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Proposed
maximum aggregate
offering price (2) |
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Amount of
registration fee |
Class A common stock, $0.01 par value |
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2,000,000 shares |
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$23.67 |
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$47,340,000 |
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$5,500.91 |
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(1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this registration statement also covers any additional shares of Class A common stock that become issuable under the
above-named plan by reason of any stock split, stock dividend or other similar transaction. |
(2) |
Estimated solely for the purpose of calculating the registration fee pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act, based upon the average of the high and low prices of the Class A common stock
reported on the New York Stock Exchange on May 5, 2015. |
EXPLANATORY NOTE
This registration statement on Form S-8 registers additional securities of the same class as other securities for which a registration
statement on Form S-8 relating to the Sonic Automotive, Inc. 2012 Stock Incentive Plan, as amended and restated effective February 11, 2015 (the Plan), is effective. Accordingly, pursuant to General Instruction E to Form S-8, the
registrant hereby incorporates by reference herein the contents of such registration statement on Form S-8 (Registration No. 333-180814) and hereby deems such contents to be a part hereof, except as otherwise updated or modified by this
registration statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance
with the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. |
Incorporation of Documents by Reference. |
Except as indicated below, the following
documents filed by the registrant with the Securities and Exchange Commission (the Commission) (File No. 1-13395) are incorporated by reference in this registration statement:
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the registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2014; |
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the registrants Quarterly Report on Form 10-Q for the quarter ended March 31, 2015; |
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the registrants Current Reports on Form 8-K filed on February 13, 2015, April 17, 2015 and May 8, 2015; and |
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the description of the registrants Class A common stock contained in the registrants registration statement on Form 8-A, as amended, filed with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the Exchange Act), including any amendment or report filed for the purpose of updating such description. |
In addition, all documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than
those Current Reports on Form 8-K which furnish information pursuant to Item 2.02 or Item 7.01 of such report and exhibits furnished in connection therewith), 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 in this registration statement and to be a part hereof from the date of filing of such
documents.
Any statement contained herein or in any document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this registration statement
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to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference in this registration statement 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 6. |
Indemnification of Directors and Officers. |
Set forth below is a description of certain
provisions of the registrants Amended and Restated Certificate of Incorporation, as amended (the Amended and Restated Certificate of Incorporation), the registrants Amended and Restated Bylaws (the Amended and Restated
Bylaws) and the General Corporation Law of the State of Delaware (the DGCL), as such provisions relate to the indemnification of the directors and officers of the registrant. This description is intended only as a summary and is
qualified in its entirety by reference to the Amended and Restated Certificate of Incorporation, the Amended and Restated Bylaws and the DGCL.
Section 145 of the DGCL provides that a corporation 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 corporation, by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other 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 such person
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 reasonable cause to believe such persons conduct was unlawful, except that, in the case of an
action by or in the right of the corporation, no indemnification may be made in respect of any claim, issue or matter as to which such person is adjudged to be liable to the corporation, unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court deems proper. The Amended and Restated Bylaws provide that the registrant will indemnify and advance expenses to its directors and officers to the fullest extent permitted by law.
Section 102(b)(7) of the DGCL permits a corporation to include a provision in its certificate of incorporation eliminating or limiting
the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any
breach of the directors 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 unlawful payment of
dividends or purchase or redemption of shares; or (iv) for any transaction from which the director derived an improper personal benefit. The Amended and Restated Certificate of Incorporation contains a provision limiting the personal liability
of the registrants directors to the fullest extent permitted by law.
Section 145 of the DGCL also permits a corporation to
purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation. The registrant maintains directors and officers liability insurance for its directors and officers, as
permitted in the Amended and Restated Bylaws.
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See the Exhibit Index, which follows the signature pages to this
registration statement and is herein incorporated by reference.
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 of 1933;
(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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 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 (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 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.
(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.
(4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the
registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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
of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing
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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.
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SIGNATURES
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 this 8th day of May, 2015.
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SONIC AUTOMOTIVE, INC. |
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By: |
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/s/ Heath R. Byrd |
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Heath R. Byrd |
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Executive Vice President and |
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Chief Financial Officer |
POWER OF ATTORNEY
Each of the undersigned directors and officers of the above named registrant, by his execution hereof, hereby constitutes and appoints Heath
R. Byrd and Stephen K. Coss, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to do any and all acts and things for him, and in his name, place and stead, to execute any and
all amendments (including post-effective amendments) to such registration statement and any related registration statement (or amendment thereto) pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, together with all
exhibits and schedules thereto and all other documents in connection therewith, with the Securities and Exchange Commission and with such state securities authorities as may be appropriate, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully and to all intents and purposes as the undersigned might or could do in person, and hereby
ratifying and confirming all the acts of said attorneys-in-fact and agents, or any of them, or their substitutes, which they may lawfully do in the premises 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 indicated on this 8th day of May, 2015:
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Signature |
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Title |
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/s/ O. Bruton Smith
O. Bruton Smith |
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Chairman, Chief Executive Officer and Director
(Principal Executive Officer) |
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/s/ B. Scott Smith
B. Scott Smith |
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President, Chief Strategic Officer and Director |
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/s/ Heath R. Byrd
Heath R. Byrd |
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Executive Vice President and Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer) |
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David Bruton Smith |
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Vice Chairman and Director |
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/s/ William I. Belk
William I. Belk |
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Director |
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/s/ William R. Brooks
William R. Brooks |
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Director |
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/s/ Bernard C. Byrd, Jr.
Bernard C. Byrd, Jr. |
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Director |
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/s/ Victor H. Doolan
Victor H. Doolan |
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Director |
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John W. Harris III |
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Director |
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/s/ H. Robert Heller
H. Robert Heller |
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Director |
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/s/ R. Eugene Taylor
R. Eugene Taylor |
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Director |
EXHIBIT INDEX
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Exhibit No. |
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Description |
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4.1 |
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Amended and Restated Certificate of Incorporation of Sonic Automotive, Inc. (incorporated by reference to Exhibit 3.1 to the Registration Statement on Form S-1 (Reg. No. 333-33295) filed August 8, 1997). |
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4.2 |
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Sonic Automotive, Inc. (incorporated by reference to Exhibit 3.2 to the Annual Report on Form 10-K for the year ended December 31,
1999). |
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4.3 |
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Amended and Restated Bylaws of Sonic Automotive, Inc., as of February 9, 2006 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed February 13, 2006). |
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4.4 |
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Specimen Class A Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-1/A (Reg. No. 333-33295) filed October 17, 1997). |
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4.5 |
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Sonic Automotive, Inc. 2012 Stock Incentive Plan, as amended and restated effective February 11, 2015 (incorporated by reference to Appendix A to the Proxy Statement on Schedule 14A filed March 3, 2015). |
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5.1* |
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Opinion of Moore & Van Allen PLLC. |
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23.1* |
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Consent of KPMG LLP. |
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23.2* |
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Consent of Ernst & Young LLP. |
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23.3* |
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Consent of Moore & Van Allen PLLC (included in Exhibit 5.1). |
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24.1* |
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Power of Attorney (included in signature pages). |
Exhibit 5.1
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Moore & Van Allen PLLC |
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Attorneys at Law |
May 8, 2015 |
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Suite 4700
100 North Tryon Street Charlotte, NC
28202-4003 |
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T 704 331 1000
F 704 331 1159
www.mvalaw.com |
Sonic Automotive, Inc.
4401
Colwick Road
Charlotte, North Carolina 28211
Re: |
Registration Statement on Form S-8 |
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2,000,000 Shares of Class A Common Stock of Sonic Automotive, Inc. |
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Pursuant to the Sonic Automotive, Inc. 2012 Stock Incentive Plan |
Ladies and Gentlemen:
We have acted as counsel to Sonic Automotive, Inc., a Delaware corporation (the Company), in connection with the
Registration Statement on Form S-8 (the Registration Statement) that is being filed on the date hereof with the Securities and Exchange Commission (the Commission) by the Company pursuant to the Securities Act
of 1933, as amended (the Securities Act), relating to the registration of an additional 2,000,000 shares (the Shares) of the Companys Class A common stock, par value $0.01 per share
(the Common Stock), which may be issued pursuant to the Sonic Automotive, Inc. 2012 Stock Incentive Plan, as amended and restated effective February 11, 2015 (the Plan). This opinion is being furnished
in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement, other than as to the validity of the
Shares.
In rendering our opinion, we have examined, and are familiar with, and have relied as to factual matters solely upon, originals
or copies certified, or otherwise identified to our satisfaction, of such documents, corporate records or other instruments as we have deemed necessary or appropriate for the purpose of the opinion set forth herein, including, without limitation
(i) the Registration Statement, (ii) the Plan, (iii) the Companys Amended and Restated Certificate of Incorporation, as amended, and the Companys Amended and Restated Bylaws, as amended and restated February 9, 2006,
and (iv) all actions of the Companys board of directors and stockholders reflected in the Companys minute book (collectively, the Registration Documents).
In rendering our opinion, we have assumed the legal capacity and competency of all natural persons executing documents and certificates
submitted to us, the genuineness of all signatures, the authenticity of original and certified documents submitted to us, and the conformity to original or certified documents of all copies submitted to us as conformed or reproduction copies. As to
various questions of fact relevant to the opinion expressed herein, we have relied upon, and assumed the accuracy of, statements contained in the Registration Documents and certificates or comparable documents and oral or written statements and
other information of or from public officials and officers and representatives of the Company and others.
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Charlotte, NC Research Triangle Park, NC
Charleston, SC |
Sonic Automotive, Inc.
May 8, 2015
Page
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To the extent it may be relevant to the opinion expressed below, we have assumed that the
Company will have sufficient authorized but unissued shares of Common Stock on the date of any issuance of the Shares registered pursuant to the Registration Statement.
Based upon the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that the
Shares are duly authorized and, when issued, delivered, vested and sold in accordance with the terms of the Plan and the terms of any other agreement relating to any of the Shares, will be validly issued, fully paid and nonassessable.
The opinion set forth above is subject to the following:
(A) bankruptcy, insolvency, reorganization, moratorium and other laws (or related judicial doctrines) now or hereafter in effect affecting
creditors rights and remedies generally;
(B) general principles of equity (including, without limitation, standards of materiality,
good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies), whether such principles are considered in a proceeding in equity or at law; and
(C) the application of any applicable fraudulent conveyance, fraudulent transfer, fraudulent obligation, or preferential transfer law or any
law governing the distribution of assets of any person now or hereafter in effect affecting creditors rights and remedies generally.
The opinion expressed herein is limited to the General Corporation Law of the State of Delaware as currently in effect, and no opinion is
expressed with respect to such law as subsequently amended, or any other laws, or any effect that such amended or other laws may have on the opinion expressed herein. The opinion expressed herein is limited to the matters stated herein and no
opinion is implied or may be inferred beyond the matters expressly stated herein. The opinion expressed herein is given as of the date hereof, and we undertake no obligation to advise you of any changes in applicable laws after the date hereof or of
any facts that might change the opinion expressed herein that we may become aware of after the date hereof or for any other reason.
We
hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7
of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Moore & Van Allen PLLC
MOORE & VAN ALLEN
PLLC
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Sonic Automotive, Inc.:
We consent to the use of our reports dated February 27, 2015, with respect to the consolidated balance sheet of Sonic Automotive, Inc. and subsidiaries
as of December 31, 2014, and the related consolidated statements of income, comprehensive income, stockholders equity, and cash flows, for the year ended December 31, 2014, and the effectiveness of internal control over financial
reporting as of December 31, 2014 incorporated by reference herein.
/s/ KPMG LLP
Charlotte, North Carolina
May 8, 2015
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-00000) pertaining to the Sonic Automotive, Inc. 2012
Stock Incentive Plan of our report dated March 3, 2014, with respect to the consolidated financial statements of Sonic Automotive, Inc. and subsidiaries (the Company) as of December 31, 2013 and for the years ended
December 31, 2013 and 2012 included in its Annual Report (Form 10-K) for the year ended December 31, 2014.
/s/ ERNST & YOUNG LLP
Charlotte, North Carolina
May 8, 2015
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