Securities Registration: Employee Benefit Plan (s-8)
April 27 2017 - 4:45PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on April 27, 2017
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
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(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
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(Address of Principal Executive Offices)
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(Zip Code)
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Sonic Automotive, Inc. 2012 Formula Restricted Stock and Deferral Plan for
Non-Employee
Directors,
amended and restated effective as of April 18, 2017
(Full title of the plan)
Stephen K.
Coss, Esq.
Senior Vice President and General Counsel
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)
Copies 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, a smaller reporting company, or an emerging growth company. See the definitions of large accelerated
filer, accelerated filer, smaller reporting company, and emerging growth company in
Rule 12b-2
of the Exchange Act.
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Large accelerated filer
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☒
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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
Emerging growth company
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☐
☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
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
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Class A common stock, $0.01 par value
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200,000 shares
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$20.08
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$4,016,000
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$465.45
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(1)
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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.
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(2)
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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 April 21, 2017.
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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 Formula Restricted Stock and Deferral Plan for
Non-Employee
Directors, amended and restated effective as of April 18, 2017 (formerly known as the Sonic Automotive, Inc. 2012 Formula Restricted Stock Plan for
Non-Employee
Directors) (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. 333-180815)
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.
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Incorporation of Documents by Reference.
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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 year ended December 31, 2016;
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the registrants Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2017;
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the registrants Current Reports on
Form 8-K
filed on February 16, 2017, March 14, 2017* and April 20, 2017; 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.
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*
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Information furnished in this Current Report on Form 8-K pursuant to Item 2.02 or Item 7.01 and exhibits furnished in connection therewith are not incorporated by reference herein.
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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.
1
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 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.
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Indemnification of Directors and Officers.
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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.
2
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 percent 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.
3
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 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.
4
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 27
th
day of April, 2017.
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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
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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,
necessary or advisable 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 27
th
day of April, 2017:
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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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Executive Chairman and Director
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/s/ B. SCOTT SMITH
B. Scott Smith
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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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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/s/ DAVID BRUTON SMITH
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/ VICTOR H. DOOLAN
Victor H. Doolan
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Director
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/s/ JOHN W. HARRIS III
John W. Harris III
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Director
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/s/ ROBERT HELLER
Robert Heller
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Director
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/s/ R. EUGENE TAYLOR
R. Eugene Taylor
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Director
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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., dated August 7, 1997 (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form
10-Q
for the
quarter ended March 31, 2017 (File
No. 001-13395)).
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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., dated June 16, 1999 (incorporated by reference to Exhibit 3.3 to the Quarterly Report on Form
10-Q
for the quarter ended March 31, 2017 (File
No. 001-13395)).
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4.3
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Sonic Automotive, Inc., dated April 18, 2017 (incorporated by reference to Exhibit 3.4 to the Quarterly Report on Form
10-Q
for the quarter ended March 31, 2017 (File
No. 001-13395)).
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4.4
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Amended and Restated Bylaws of Sonic Automotive, Inc., as of February 13, 2017 (incorporated by reference to Exhibit 3.1 to the Current Report on Form
8-K
filed February 16, 2017
(File
No. 001-13395)).
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4.5
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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
filed October 17, 1997 (File
No. 333-33295)).
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4.6
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Sonic Automotive, Inc. 2012 Formula Restricted Stock and Deferral Plan for
Non-Employee
Directors, amended and restated effective as of April 18, 2017 (incorporated by reference to
Appendix B to the Definitive Proxy Statement on Schedule 14A filed March 6, 2017 (File
No. 001-13395)).
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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 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).
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