As filed with the Securities and Exchange Commission on December 9,
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
__________________________
AMERICA’S CAR-MART, INC.
(Exact name of registrant as specified in its charter)
Texas
(State or other jurisdiction of
incorporation or organization) |
63-0851141
(IRS Employer
Identification Number) |
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802 Southeast Plaza Avenue, Suite 200, Bentonville, AR |
72712 |
(Address of Principal Executive Offices) |
(Zip
Code) |
__________________________
AMERICA’S CAR-MART, INC. AMENDED AND RESTATED STOCK OPTION PLAN
(Full title of the plan)
__________________________
Jeffrey A. Williams
Chief Financial Officer
America’s Car-Mart, Inc.
802 Southeast Plaza Avenue, Suite 200
Bentonville, Arkansas 72712
Telephone: (479) 464-9944
(Name, address and telephone number,
including area code,
of agent for service) |
|
Copy to:
Courtney C. Crouch, III
Mitchell, Williams, Selig, Gates &
Woodyard, P.L.L.C.
425 West Capitol Avenue, Suite 1800
Little Rock, Arkansas 72201
Telephone: (501) 688-8822
Facsimile: (501) 918-7822 |
__________________________
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. (Check
one):
Large accelerated filer o |
Accelerated
filer ý |
Non-accelerated filer o |
Smaller
reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered |
Amount to be
registered (1) |
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 (2) |
Common Stock, par value $0.01 per share |
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Carried Forward Shares (3) |
1,255,250 |
N/A |
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N/A |
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N/A (4) |
Shares not previously registered (5) |
300,000 |
$26.71 |
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$8,013,000 |
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$807 |
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(1) |
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This Registration Statement shall also cover any additional shares of common stock which become issuable under the America’s Car-Mart, Inc. Amended and Restated Stock Option Plan (the “Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of America’s Car-Mart, Inc. (the “Registrant”) common stock. |
(2) |
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Calculated solely for the purpose of calculating the registration fee in accordance with Rules 457(c) and (h) under the Securities Act of 1933, as amended, based upon the average of the high and low prices of the common stock of the Registrant on December 3, 2015, as reported on the NASDAQ Global Select Market, which was $26.71. |
(3) |
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On August 5, 2015, the Registrant’s stockholders approved the Plan, which amended and restated the Registrant’s 2007 Stock Option Plan (the “2007 Plan”). The terms of the Plan provide, among other things, that the shares of common stock authorized for issuance under the Plan include all shares available for delivery since the establishment of the 2007 Plan and that if any shares are not delivered to a participant because the stock option award is forfeited, canceled or settled in cash, the shares of common stock under such award will revert to and again become available for issuance under the Plan. The Carried Forward Shares are shares of common stock of the Registrant that were previously registered by the Registrant under the 2007 Plan that, as of the date of this Registration Statement, are subject to outstanding awards granted under the 2007 Plan or are not subject to outstanding awards and remain available for grant under the Plan. |
(4) |
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An aggregate of 755,250 of the Carried Forward Shares were previously registered by the Registrant under a registration statement on Form S-8 filed on December 7, 2007 (File No. 333-147915), and an aggregate of 500,000 of the Carried Forward Shares were previously registered by the Registrant under a registration statement on Form S-8 filed on December 3, 2010 (File No. 333-170964). The Registrant paid the required fees for the registration of the Carried Forward Shares based on the proposed maximum offering price reported in each of the foregoing registration statements. Pursuant to Interpretation 89 under Section G of the Manual of Publicly Available Telephone Interpretations of the Division of Corporation Finance of the Securities and Exchange Commission (July 1997) and Instruction E to the General Instructions to Form S-8, the Registrant has carried forward the registration fees for the Carried Forward Shares. The Registrant is concurrently filing Post-Effective Amendments No. 1 to the registration statements on Form S-8 filed on December 7, 2007 (File No. 333-147915) and December 3, 2010 (File No. 333-170964), respectively, deregistering the Carried Forward Shares under the 2007 Plan. Therefore, no further registration fee is required with respect to the Carried Forward Shares. |
(5) |
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Represents 300,000 shares of common stock not previously registered and available for issuance under the Plan. |
EXPLANATORY NOTE
This Registration Statement on Form S-8 is filed
by America’s Car-Mart, Inc., a Texas corporation (the “Corporation” or the “Registrant”), to register
an aggregate of 1,555,250 shares of its common stock, par value $0.01 per share (the “Common Stock”), issuable to employees,
directors and certain independent contractors, consultants and advisors of the Corporation under the America’s Car-Mart,
Inc. Amended and Restated Stock Option Plan (the “Plan”).
On August 5, 2015, the Corporation’s stockholders
approved the Plan, which amended and restated the Corporation’s 2007 Stock Option Plan (the “2007 Plan”). An
aggregate of 1,800,000 shares of Common Stock are authorized for issuance under the Plan, which includes all shares available for
delivery since the establishment of the 2007 Plan. In addition, the terms of the Plan provide, among other things, that if any
shares are not delivered to a participant because the stock option award is forfeited, canceled or settled in cash, the shares
of Common Stock under such award will revert to and again become available for issuance under the Plan.
The purpose of this Registration Statement is (i)
to register 300,000 shares of Common Stock newly reserved under the Plan, and (ii) to carry forward an aggregate of 1,255,250 shares
of Common Stock that were previously registered by the Corporation (the “Carried Forward Shares”) under the 2007 Plan
under registration statements on Form S-8, filed with the Securities and Exchange Commission (the “Commission”) on
December 7, 2007 (File No. 333-147915) and December 3, 2010 (File No. 333-170964), respectively.
In accordance with the principles set forth in Interpretation
89 under Section G of the Manual of Publicly Available Telephone Interpretations of the Commission’s Division of Corporation
Finance (July 1997) and Instruction E to the General Instructions to Form S-8, this Registration Statement is hereby filed
to carry forward the Carried Forward Shares and the registration fees previously paid with respect to the registration of those
shares. A post-effective amendment to each of the foregoing registration statements on Form S-8 to deregister the Carried
Forward Shares is being filed contemporaneously with the filing of this Registration Statement.
Part I
Information Required in Section
10(a) Prospectus
Item 1. Plan Information.
Omitted.*
Item 2. Registrant Information and Employee Plan Annual Information.
Omitted.*
______________________
*Separately given to participants. Pursuant to the rules
for filing a registration statement on Form S-8, such information is contained in documents which do not constitute a part of this
registration statement but which shall, together with the documents incorporated by reference in this registration statement pursuant
to Item 3 of Part II hereof, constitute a prospectus under Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have previously been
filed by the Corporation with the Securities and Exchange Commission (the “Commission”), are incorporated by reference
herein and shall be deemed to be a part hereof:
(1) The Registrant’s latest Annual Report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or latest
prospectus filed pursuant to Rule 424(b) under the Securities Act, that contains audited financial statements for the Registrant’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 the Registrant’s latest annual report or prospectus
referred to in (1) above; and
(3) The description of the Common Stock contained
in the Registrant’s Registration Statement on Form 10 filed with the Commission on December 23, 1986, as amended by a Current
Report on Form 8-K filed with the Commission on November 2, 2005, together with any amendment or report filed with the Commission
for the purpose of updating such description.
In addition, all documents filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 or 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 such securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration Statement and made part hereof from their respective
dates of filing (such documents, and the documents listed above, being hereinafter referred to as “Incorporated Documents”);
provided, however, that the documents listed above or subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act in each year during which the offering made by this Registration Statement is in effect prior to
the filing with the Commission of the Registrant’s Annual Report on Form 10-K covering such year shall cease to be Incorporated
Documents or be incorporated by reference in this Registration Statement from and after the filing of such Annual Report. The Registrant’s
Exchange Act file number with the Commission is 000-14939.
Any statement contained in an Incorporated Document
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 Incorporated Document modifies or supersedes such statement. Any statement contained
herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement
contained in any subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 7.001 of the Texas Business
Organizations Code, the articles of incorporation of the Corporation provide for the elimination of monetary liability of directors
of the Corporation, except for (i) any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii)
any act or omission not in good faith that constitutes a breach of duty of the director to the Corporation or that involves intentional
misconduct or a knowing violation of law, (iii) any transaction from which the director derived any improper personal benefit,
or (iv) any act or omission where the liability of the director is expressly provided by statute.
The Corporation’s bylaws provide that to the
extent that a director or officer has been successful in the defense of any proceeding to which he was a party by virtue of his
being a director or officer of the Corporation, the Corporation shall indemnify the director or officer for reasonable expenses
incurred therewith.
In addition, the Corporation may indemnify a director
or officer of the Corporation who is or is threatened to be made a named defendant or respondent in a proceeding because he is
or was a director or officer against liability incurred in the proceeding if he acted in his official capacity and in a manner
he reasonably believed in good faith to be in or not opposed to the best interests of the Corporation and, in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful; except that, in general, no indemnification shall be made
in connection with a proceeding by or in the right of the Corporation in which the director or officer was adjudged liable to the
Corporation or in connection with any other proceeding in which a director or officer is adjudged liable on the basis that personal
benefit was improperly received by him. If the person is found liable to the Corporation on the basis that personal benefit was
improperly received by the person, the Corporation may indemnify that person, but such indemnification is limited to reasonable
expenses actually incurred by the person in connection with the proceeding and shall not be made in respect of any proceeding in
which the person shall have been found liable for willful or intentional misconduct in the performance of his duty to the Company.
Chapter 8 of the Texas Business Organizations Code
sets forth the applicable terms, conditions, and limitations governing the indemnification of officers, directors and other persons.
The Corporation also maintains insurance on behalf
of its directors and officers insuring them against any liability asserted against them in their capacities as directors or officers
or arising out of such status.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The index to exhibits attached to this registration
statement is incorporated herein by reference.
Item 9. Undertakings.
(a) 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. 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;
(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 (a)(1)(i) and (a)(1)(ii) 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 Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for purposes 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.
(b) 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.
(c) 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 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 of 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY
LEFT BLANK]
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 Bentonville, State of Arkansas, on this 9th day of December, 2015.
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AMERICA’S CAR-MART, INC. |
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By:
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/s/ Jeffrey A. Williams |
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Jeffrey A. Williams |
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Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints William H. Henderson and Jeffrey A. Williams, and each of them,
his true and lawful attorneys-in-fact and agents, 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 all documents in connection therewith, with the Securities and Exchange
Commission, 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 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 each said attorneys-in-fact and agents, or any of them or
their 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 date indicated.
Signature |
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Title |
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Date |
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/s/ William H. Henderson |
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Chief Executive Officer and Director |
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December 9, 2015 |
William H. Henderson |
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(principal executive officer) |
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/s/ Jeffrey A. Williams |
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Chief Financial Officer and Director |
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December 9, 2015 |
Jeffrey A. Williams |
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(principal financial and accounting officer) |
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/s/ Daniel J. Englander |
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Director |
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December 9, 2015 |
Daniel J. Englander |
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/s/ Kenny Gunderman
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Director |
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December 9, 2015 |
Kenny Gunderman |
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/s/ Eddie L. Hight
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Director |
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December 9, 2015 |
Eddie L. Hight |
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/s/ J. David Simmons
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Director |
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December 9, 2015 |
J. David Simmons |
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/s/ Robert Cameron Smith
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Director |
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December 9, 2015 |
Robert Cameron Smith |
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EXHIBIT INDEX
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Exhibit No. |
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Exhibit Description |
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4.1 |
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Articles of Incorporation of the Corporation, as amended (incorporated by reference to Exhibits 4.1-4.8 to the Corporation’s Registration Statement on Form S-8 filed with the Commission on November 16, 2005 (Commission File No. 333-129727)). |
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4.2 |
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Amended and Restated Bylaws of the Corporation dated December 4, 2007 (incorporated by reference to Exhibit 3.2 to the Corporation’s Quarterly Report on Form 10-Q for the quarter ended October 31, 2007 filed with the Commission on December 7, 2007). |
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4.3 |
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Amendment No. 1 to the Amended and Restated Bylaws of the Corporation dated February 18, 2014 (incorporated by reference to Exhibit 3.1 to the Corporation’s Current Report on Form 8-K filed with the SEC on February 19, 2014). |
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5.1* |
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Opinion of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. |
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23.1* |
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Consent of Grant Thornton LLP. |
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23.2 |
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Consent of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. (included in Exhibit 5.1). |
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24.1 |
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Power of Attorney (contained on signature page hereto). |
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99.1 |
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America’s Car-Mart, Inc. 2007 Stock Option Plan (incorporated by reference to Appendix
A to the Corporation’s Proxy Statement on Schedule 14A filed with the SEC on August 28, 2007).
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99.2 |
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Amendment to America’s Car-Mart, Inc. 2007 Stock Option Plan (incorporated by
reference to Appendix A to the Corporation’s Proxy Statement on Schedule 14A filed with the SEC on August 27, 2010).
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99.3 |
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Amendment to America’s Car-Mart, Inc. 2007 Stock Option Plan (incorporated by
reference to Exhibit 10.1 to the Corporation’s Quarterly Report on Form 10-Q for the quarter ended October 31, 2013 filed
with the SEC on December 4, 2013).
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99.4 |
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America’s Car-Mart, Inc. Amended and Restated Stock Option Plan (incorporated by reference
to Appendix B to the Corporation’s Proxy Statement on Schedule 14A filed with the Commission on June 23, 2015).
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___________________
* Filed herewith
2
Exhibit 5.1
[MITCHELL, WILLIAMS, SELIG, GATES & WOODYARD, P.L.L.C. LETTERHEAD]
December 9, 2015
America’s Car-Mart, Inc.
802 Southeast Plaza Ave., Suite 200
Bentonville, Arkansas 72712
| Re: | Registration Statement on Form S-8 – America’s Car-Mart
Inc. Amended and Restated Stock Option Plan |
Ladies and Gentlemen:
We have acted as counsel to America’s Car-Mart,
Inc., a Texas corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange
Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), of the Company’s
Registration Statement on Form S-8 (the “Registration Statement”) registering 1,555,250 shares (the “Shares”)
of the Company’s common stock, $0.01 par value per share, subject to issuance by the Company under the Company’s Amended
and Restated Stock Option Plan (the “Plan”).
In so acting we have examined originals, or copies
certified or otherwise identified to our satisfaction, of (a) the Registration Statement, (b) the Articles of Incorporation of
the Company, as amended, (c) the Amended and Restated Bylaws of the Company, as amended, (d) the Plan, and (e) such other documents,
records, certificates and other instruments as in our judgment are necessary or appropriate for purposes of this opinion. We have
assumed that (i) the Shares will be issued for consideration consisting of any tangible or intangible benefit to the Company, cash,
services performed or a contract for services to be performed, a security of the Company or other property of any kind or nature; (ii) the consideration will not be less than the par value of the Shares; and (iii) the Shares were or will be
issued in compliance with applicable federal and state securities laws and in accordance with the Plan.
In our examination of the aforesaid documents, we
have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all
documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all
documents submitted to us as copies. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law
solely on the Texas Business Organizations Code. We express no opinion herein as to any other laws, statutes, ordinances, rules
or regulations.
Based upon, subject to and limited by the foregoing,
we are of the opinion that the Shares, when issued, will be duly authorized, validly issued, fully paid and non-assessable.
Our opinion represents the reasoned judgment
of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., as to certain matters of law based upon facts presented to us or
assumed by us and should not be considered or construed as a guaranty. Our opinion is subject to future changes in law or fact,
and we disclaim any obligation to advise you of or update this opinion for any changes of applicable law or facts that may affect
matters or opinions set forth herein.
This opinion letter has been prepared solely
for your use in connection with the filing of the Registration Statement and speaks as of the date hereof. We assume no obligation
to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter.
We hereby consent to the filing of this opinion
letter as Exhibit 5.1 to 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 Securities Act or the rules and regulations of the SEC promulgated thereunder.
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Very truly yours, |
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/s/ Mitchell, Williams, Selig, Gates & Woodyard,
P.L.L.C |
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MITCHELL, WILLIAMS, SELIG, GATES & WOODYARD, P.L.L.C |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our reports dated
June 12, 2015 with respect to the consolidated financial statements and internal control over financial reporting of America’s
Car-Mart, Inc. included in the Annual Report on Form 10-K for the year ended April 30, 2015, which are incorporated by reference
in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration
Statement.
/s/ GRANT THORNTON LLP
Tulsa, Oklahoma
December 9, 2015
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