As filed with the Securities and Exchange Commission on May 21, 2003
Registration No. 333-______
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United States Securities and Exchange Commission
Washington, DC 20549
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Form S-8
Registration Statement
Under
The Securities Act of 1933
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ASBURY AUTOMOTIVE GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 58-2241119
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
3 Landmark Square, Suite 500
Stamford, Connecticut 06901
(Address of Principal Executive Offices)
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Asbury Automotive Group, Inc. 2002 Stock Option Plan
(Full Title of the Plan)
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Lynne A. Burgess
Vice President and General Counsel
Asbury Automotive Group, Inc.
3 Landmark Square, Suite 500
Stamford, Connecticut 06901
(203) 356-4400
(Name, address and telephone number, including area code, of agent for service)
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Copies To:
Mary C. Waghorne, Esq.
Asbury Automotive Group, Inc.
3 Landmark Square, Suite 500
Stamford, Connecticut 06901
(203) 356-4400
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Calculation of Registration Fee
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Title of Securities to Amount to be Proposed maximum offering Proposed maximum Amount of
be registered registered price per share1 aggregate offering price registration fee2
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Common Stock, par value 3,250,000 10.60 34,450,000 2,787
$.01 per share
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1 Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(h)(1) based on the average of the high and low sales prices for
the common stock reported on the New York Stock Exchange on May 19, 2003.
2 An aggregate of 1,500,000 shares are being carried forward from those
shares previously registered by Registration Statement on Form S-8 (File No.
333-84646). A registration fee of $2,182 was paid with respect to shares
registered in that filing. The previously registered shares being carried
forward together with the shares being registered hereby represent the total
number of shares reserved for issuance under the Plan.
9
PART I
Information Required in the Section 10(a) Prospectus
Note:
This Registration Statement relates to the registration of 3,250,000
additional shares of common stock of Asbury Automotive Group, Inc. (the
"Company" or "Registrant") reserved for issuance and delivery under the Asbury
Automotive Group, Inc. 2002 Stock Option Plan (the "Plan"), as amended. The
Company's stockholders approved the increase in the number of shares authorized
to be issued under the Plan on May 8, 2003. Pursuant to the Form S-8
Registration Statement filed by the Company on March 20, 2002, the Company has
previously registered an aggregate of 1,500,000 shares of common stock of which
1,500,000 remain available for issuance under the Plan. The contents of that
Form S-8 Registration Statement (Registration No. 333-84646) are incorporated
herein by reference pursuant to General Instruction E for the Form S-8.
The documents containing the information specified in Part I of Form
S-8 have been or will be sent or given to participating employees as specified
in Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act"), in accordance with the rules and regulations of the United States
Securities and Exchange Commission (the "Commission"). Such documents are not
being filed with the Commission either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424. These documents
and the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of 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 filed with the Securities and Exchange
Commission by the Registrant are incorporated, as of their respective filing
dates, in this Registration Statement by reference:
A. Registrant's Annual Report on Form 10-K for the fiscal year ended December
31, 2002. B. Registrant's Quarterly Report on Form 10-Q for the period ended
March 31, 2003. C. Registrant's Current Reports on Form 8-K dated February 28,
2003, April 17, 2003 and April 30, 2003.
D. Registrant's Form S-8 Registration Statement (Registration No. 333-84646)
filed with the Commission on March 20, 2002. E. The Description of Registrant's
Common Stock contained in the Registrant's Registration Statement on Form S-1
(Reg. No.
333-65998) filed on February 22, 2002, and all amendments
or reports filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
after the date hereof and 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 herein and to be a part hereof from the date of filing
of such documents. Any statement contained in an incorporated document or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
or in any subsequently filed document which also is deemed to be incorporated by
reference herein 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 hereof.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Certificate of Incorporation (the "Certificate") of the Company
provides that a director or officer of the Company will not be personally liable
to the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except, if required by the Delaware General Corporation Law
(the "DGCL") as amended from time to time, for liability (i) for any breach of
the director's duty of loyalty to the Company or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, which concerns
unlawful payments of dividends, stock purchases or redemptions, or (iv) for any
transaction from which the director derived an improper personal benefit.
Neither the amendment nor repeal of such provision will eliminate or reduce the
effect of such provision in respect of any matter occurring, or any cause of
action, suit or claim that, but for such provision, would accrue or arise prior
to such amendment or repeal.
The Certificate provides that each person who was or is made a party
to or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director or
officer of the Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, will be
indemnified and held harmless by the Company to the fullest extent authorized by
the DGCL, as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the Company
to provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment), against all expense, liability and loss
reasonably incurred or suffered by such person in connection therewith. Such
right to indemnification includes the right to have the Company pay the expenses
incurred in defending any such proceeding in advance of its final disposition,
subject to the provisions of the DGCL. Such rights are not exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the Certificate, By-laws, agreement, vote of stockholders or
disinterested directors or otherwise. No repeal or modification of such
provision will in any way diminish or adversely affect the rights of any
director, officer, employee or agent of the Company thereunder in respect of any
occurrence or matter arising prior to any such repeal or modification.
The Section 145 of the DGCL, provides, in pertinent part, 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 he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as the 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 him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he 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 his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
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
reasonable cause to believe that his conduct was unlawful. In addition, the
indemnification of expenses (including attorneys' fees) is allowed in derivative
actions, except no indemnification is allowed in respect to any claim, issue or
matter as to which any such person has been 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 decides that indemnification is
proper. To the extent that any such person succeeds on the merits or otherwise,
he shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith. The determination that
the person to be indemnified met the applicable standard of conduct, if not made
by a court, is made by the directors of the corporation by a majority vote of
the directors not party to such an action, suit or proceeding even though less
than a quorum, by a Committee of such directors designated by a majority vote of
such directors even though less than a quorum, or, if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion or by the stockholders. Expenses may be paid in advance upon the
receipt, in the case of officers and directors, of undertakings to repay such
amount if it shall ultimately be determined that the person is not entitled to
be indemnified by the corporation as authorized in this section. A corporation
may purchase indemnity insurance.
The above described indemnification and advancement of expenses, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and inure to the benefit of
such person's heirs, executors and administrators.
The Company has also entered into indemnification agreements with its
directors and certain of its officers that require it, among other things, to
indemnify them against certain liabilities that may arise by reason of their
status or service as directors or officers to the fullest extent permitted by
law. The Company also maintains liability insurance for the benefit or its
officers and directors.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
4.1 The Company's Restated Certificate of Incorporation filed as Exhibit
4.1 to the Company's Registration Statement on Form S-8 (Reg. No.
333-84646) filed with the Commission on March 20, 2002 and
incorporated herein by reference.
4.2 The Company's Restated By-laws filed as Exhibit 4.2 to the Company's
Registration Statement on Form S-8 (Reg. No. 333-84646) filed
with the Commission on March 20, 2002 and incorporated herein by
reference.
4.3 The Company's 2002 Stock Option Plan, as amended, filed with the
Commission on April 9, 2003 as Appendix C to the Company's Proxy
Statement and incorporated herein by reference.
5.1 Opinion of Lynne A. Burgess, the Company's Vice President and General
Counsel, regarding the legality of the shares.
23.1 Consent of Deloitte & Touche LLP, independent accountants.
24.1 Power of Attorney (included on the signature page of the Registration
Statement).
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement
(i)To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii)To reflect in the prospectus any facts or events
arising after the effective date of this 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 this registration statement; and
(iii)To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that the undertakings set forth in paragraphs 1(i) and 1(ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section15(d) of the Exchange Act
that are incorporated by reference in this registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(c) 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
that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(d) 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.
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 SEC 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.
SIGNATURES
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 Stamford, Connecticut, on this 20th day of May, 2003.
Asbury Automotive Group, Inc.
By: /s/ KENNETH B. GILMAN
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Name: Kenneth B. Gilman
Title: Chief Executive Officer
and President
We, the undersigned officers and directors of Asbury Automotive
Group, Inc., and each of us, do hereby constitute and appoint each and any of
Kenneth B. Gilman and Thomas F. Gilman our true and lawful attorney and agent,
with full power of substitution and resubstitution, to do any and all acts and
things in our name and behalf in any and all capacities, which attorney and
agent may deem necessary or advisable to enable said corporation to comply with
the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically, but without limitation, power
and authority to sign for us or any of us in our names in the capacities
indicated below, any and all amendments, including post-effective amendments
hereto; and we do hereby ratify and confirm all that said attorney and agent, or
his substitute, shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ KENNETH B. GILMAN Chief Executive Officer, May 20, 2003
---------------------- President and Director
Kenneth B. Gilman
/s/ THOMAS F. GILMAN Senior Vice President and May 20, 2003
--------------------- Chief Financial Officer
Thomas F. Gilman
/s/ BRETT HUTCHINSON Controller and May 20, 2003
--------------------- Chief Accounting Officer
Brett Hutchinson
/s/ THOMAS R. GIBSON Chairman of the Board May 20, 2003
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Thomas R. Gibson
/s/ TIMOTHY C. COLLINS Director May 20, 2003
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Timothy C. Collins
/s/ MICHAEL J. DURHAM Director May 20, 2003
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Michael J. Durham
/s/ THOMAS C. ISRAEL Director May 20, 2003
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Thomas C. Israel
/s/VERNON E. JORDAN, JR. Director May 20, 2003
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Vernon E. Jordan, Jr.
/s/ PHILIP F. MARITZ Director May 20, 2003
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Philip F. Maritz
/s/ BEN DAVID MCDAVID Director May 20, 2003
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Ben David McDavid
Director May ___, 2003
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Thomas F. McLarty
/s/ JOHN M. ROTH Director May 20, 2003
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John M. Roth
/s/ IAN K. SNOW Director May 20, 2003
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Ian K. Snow
/s/ JEFFREY I. WOOLEY Director May 20, 2003
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Jeffrey I. Wooley
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EXHIBIT INDEX
Exhibit Number Description
4.1 The Company's Restated Certificate of Incorporation filed as Exhibit
4.1 to the Company's Registration Statement on Form S-8 (Reg. No.
333-84646) filed with the Commission on March 20, 2002 and
incorporated herein by reference.
4.2 The Company's Restated By-laws filed as Exhibit 4.2 to the Company's
Registration Statement on Form S-8 (Reg. No. 333-84646) filed
with the Commission on March 20, 2002 and incorporated herein by
reference.
4.3 The Company's 2002 Stock Option Plan, as amended, filed with the
Commission on April 9, 2003 as Appendix C to the Company's Proxy
Statement and incorporated herein by reference.
5.1 Opinion of Lynne A. Burgess, the Company's Vice President and General
Counsel, regarding the legality of the shares.
23.1 Consent of Deloitte & Touche LLP, independent accountants.
24.1 Power of Attorney (included on the signature page of the Registration
Statement).
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