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Section 1: S-3ASR (S-3ASR)

Table of Contents

 

As filed with the Securities and Exchange Commission on November 13, 2019

 

Registration No. 333-         

 

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Form S-3

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

PENSKE AUTOMOTIVE GROUP, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

(For Co-registrants, Please See Table of Other Registrants on the Following Page)

 

Delaware

 

22-3086739

(State or Other Jurisdiction of
Incorporation or Organization)

 

(I.R.S. Employer
Identification No.)

 

2555 Telegraph Road

Bloomfield Hills, Michigan 48302

(248) 645-2500

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)

 

Shane M. Spradlin

Executive Vice President and General Counsel

2555 Telegraph Road

Bloomfield Hills, Michigan 48302

Telephone No.: (248) 648-2560

Facsimile No.: (248) 648-2515

(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)

 

Approximate date of commencement of proposed sale to the public:  From time to time after the Registration Statement becomes effective.

 

If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  o

 

If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.  x

 

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

 

If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

 

If this Form is a registration statement pursuant to General Instruction I.D. or a post effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.  x

 

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  o

 

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.

 

Large accelerated filer x

Accelerated filer o

Non-accelerated filer o

Smaller reporting company o

Emerging growth company o

 

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 Securities Act. o

 

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

 

 

 

 

Title of each Class of
Securities to be Registered

 

Amount to be
Registered

 

Proposed Maximum
Offering
Price per Unit

 

Proposed Maximum
Aggregate
Offering Price

 

Amount of
Registration
Fee(1)

 

Common Stock, par value $0.0001 per share

 

(1)

 

(1)

 

(1)

 

(1)

 

Preferred Stock, par value $0.0001 per share

 

(1)

 

(1)

 

(1)

 

(1)

 

Debt Securities

 

(1)

 

(1)

 

(1)

 

(1)

 

Subsidiary Guarantees of Debt Securities(2)

 

(1)

 

(1)

 

(1)

 

(1)

 

Warrants(3)

 

(1)

 

(1)

 

(1)

 

(1)

 

Rights to Purchase Common Stock(4)

 

(1)

 

(1)

 

(1)

 

(1)

 

(1)          An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may from time to time be offered at indeterminate prices.  Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities.  In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, the Registrant is deferring payment of all of the registration fee.

(2)          Pursuant to Rule 457(n) under the Securities Act of 1933, no separate filing fee is payable in respect of the subsidiary guarantees.

(3)          Includes warrants to purchase debt securities, warrants to purchase common stock and warrants to purchase preferred stock.

(4)          There are hereby registered such indeterminate number of rights to purchase common stock as may be issued as a dividend for which no separate consideration will be received to holders of common stock and related securities entitling such holders to subscribe for and purchase common stock registered hereunder.

 

 

 


Table of Contents

 

TABLE OF OTHER REGISTRANTS

 

Exact Name of Registrant Guarantor as Specified in its Charter

 

State or Other Jurisdiction of
Incorporation or Organization

 

I.R.S. Employer
Identification Number

ATC CHATTANOOGA, LLC

 

Delaware

 

38-3944558

ATC KNOXVILLE, LLC

 

Delaware

 

36-4798298

ATC REALTY INVESTMENTS, LLC

 

Oklahoma

 

46-1057967

ATC WEST TEXAS, LLC

 

Delaware

 

38-3933090

ATLANTIC AUTO FUNDING CORPORATION

 

Delaware

 

16-1480801

ATLANTIC AUTO SECOND FUNDING CORPORATION

 

Delaware

 

16-1502671

ATLANTIC AUTO THIRD FUNDING CORPORATION

 

Delaware

 

16-1505549

AUTO MALL PAYROLL SERVICES, INC.

 

Florida

 

65-0168491

AUTOMOTIVE MEDIA HOLDINGS, LLC

 

Delaware

 

27-0487960

BOWEN REALTY INVESTMENTS, LLC

 

Oklahoma

 

73-1199575

BRETT MORGAN CHEVROLET-GEO, INC.

 

Delaware

 

62-1666250

CENTRAL FORD CENTER, INC.

 

Arkansas

 

71-0472936

CJNS, LLC

 

Delaware

 

86-1024936

CLASSIC AUTO GROUP, INC.

 

New Jersey

 

22-3115638

CLASSIC ENTERPRISES, LLC

 

Delaware

 

22-3115638

CLASSIC IMPORTS, INC.

 

New Jersey

 

22-3528527

CLASSIC MANAGEMENT COMPANY, INC.

 

New Jersey

 

22-3271563

CLASSIC MOTOR SALES, LLC

 

Delaware

 

22-3555425

CLASSIC NISSAN OF TURNERSVILLE, LLC

 

Delaware

 

52-2097845

CLASSIC OLDSMOBILE-PONTIAC-GMC TRUCK, LTD.

 

Texas

 

74-2355160

CLASSIC SPECIAL ADVERTISING, INC.

 

Texas

 

74-2821777

CLASSIC SPECIAL AUTOMOTIVE GP, LLC

 

Texas

 

74-2974762

CLASSIC SPECIAL AUTOMOTIVE, LTD.

 

Texas

 

74-2974762

CLASSIC SPECIAL HYUNDAI, LTD.

 

Texas

 

74-2974736

CLASSIC SPECIAL, LLC

 

Texas

 

74-2974736

CLASSIC TURNERSVILLE, INC.

 

New Jersey

 

22-3523436

COUNTY AUTO GROUP PARTNERSHIP

 

New Jersey

 

13-3678489

COVINGTON PIKE DODGE, INC.

 

Delaware

 

62-1470261

CYCLE HOLDINGS, LLC

 

Delaware

 

26-1860955

D. YOUNG CHEVROLET, LLC

 

Delaware

 

35-2035177

DAN YOUNG CHEVROLET, INC.

 

Indiana

 

35-1123225

DAN YOUNG MOTORS, LLC

 

Delaware

 

35-2035179

DANBURY AUTO PARTNERSHIP

 

Connecticut

 

06-1349205

DEALER ACCESSORIES, LLC

 

Delaware

 

26-0111056

DIFEO CHRYSLER PLYMOUTH JEEP EAGLE PARTNERSHIP

 

New Jersey

 

22-3186252

DIFEO HYUNDAI PARTNERSHIP

 

New Jersey

 

22-3186280

DIFEO LEASING PARTNERSHIP

 

New Jersey

 

22-3193493

DIFEO NISSAN PARTNERSHIP

 

New Jersey

 

22-3186257

DIFEO PARTNERSHIP, LLC

 

Delaware

 

22-3145559

DIFEO TENAFLY PARTNERSHIP

 

New Jersey

 

22-3186285

eCARSHOP, LLC

 

Delaware

 

none

EUROPA AUTO IMPORTS, INC.

 

California

 

95-2305855

FLORIDA CHRYSLER PLYMOUTH, INC.

 

Florida

 

59-2676162

FRN OF TULSA, LLC

 

Delaware

 

74-2870051

GENE REED CHEVROLET, INC.

 

South Carolina

 

57-0714181

GMG MOTORS, INC.

 

California

 

95-2691214

GOODSON NORTH, LLC

 

Delaware

 

74-2962022

GOODSON SPRING BRANCH, LLC

 

Delaware

 

74-2962017

HBL, LLC

 

Delaware

 

38-3635872

HILL COUNTRY IMPORTS, LTD.

 

Texas

 

74-2585314

HT AUTOMOTIVE, LLC

 

Delaware

 

41-2251059

 


Table of Contents

 

Exact Name of Registrant Guarantor as Specified in its Charter

 

State or Other Jurisdiction of
Incorporation or Organization

 

I.R.S. Employer
Identification Number

HUDSON MOTORS PARTNERSHIP

 

New Jersey

 

22-3186282

KMT/UAG, INC.

 

California

 

95-3189650

LANDERS AUTO SALES, LLC

 

Delaware

 

84-1664308

LANDERS BUICK-PONTIAC, INC.

 

Arkansas

 

71-0765000

LANDERS FORD NORTH, INC.

 

Arkansas

 

71-0833592

LATE ACQUISITION I, LLC

 

Delaware

 

33-1011098

LATE ACQUISITION II, LLC

 

Delaware

 

33-1011096

MICHAEL CHEVROLET-OLDSMOBILE, INC.

 

South Carolina

 

57-0917132

MOTORCARS ACQUISITION III, LLC

 

Delaware

 

38-3526235

MOTORCARS ACQUISITION IV, LLC

 

Delaware

 

38-3569545

MOTORCARS ACQUISITION V, LLC

 

Delaware

 

87-0721680

MOTORCARS ACQUISITION VI, LLC

 

Delaware

 

86-1121782

MOTORCARS ACQUISITION, LLC

 

Delaware

 

38-3526432

NATIONAL CITY FORD, INC.

 

Delaware

 

33-0834429

OCT PARTNERSHIP

 

New Jersey

 

22-3248303

PAG ACQUISITION 27, LLC

 

Delaware

 

27-0398643

PAG ACQUISITION 28, LLC

 

Delaware

 

27-0398588

PAG ACQUISITION 61, LLC

 

Delaware

 

none

PAG ACQUISITION 62, LLC

 

Delaware

 

none

PAG ACQUISITION 63, LLC

 

Delaware

 

none

PAG ACQUISITION 64, LLC

 

Delaware

 

none

PAG ACQUISITION 65, LLC

 

Delaware

 

none

PAG ACQUISITION 66, LLC

 

Delaware

 

none

PAG ANNAPOLIS JL1, LLC

 

Delaware

 

46-3695869

PAG ARKANSAS F1, LLC

 

Delaware

 

45-3265105

PAG ARKANSAS F2, LLC

 

Delaware

 

45-4552146

PAG ATLANTA MANAGEMENT, LLC

 

Delaware

 

13-3865530

PAG AUSTIN H1, LLC

 

Delaware

 

none

PAG AUSTIN L1, LLC

 

Delaware

 

83-1863142

PAG ARIZONA CS, LLC

 

Delaware

 

none

PAG AZ PROPERTIES, LLC

 

Delaware

 

26-1377262

PAG BEDFORD A1, LLC

 

Delaware

 

27-3969879

PAG BEDFORD P1, LLC

 

Delaware

 

27-3969933

PAG BEDFORD PROPERTIES, LLC

 

Delaware

 

none

PAG CHANDLER JLR, LLC

 

Delaware

 

none

PAG CHANTILLY M1, LLC

 

Delaware

 

26-1377251

PAG CHANTILLY P1, LLC

 

Delaware

 

83-4583556

PAG CLOVIS T1, INC.

 

Delaware

 

26-1857570

PAG CONNECTICUT LR1, LLC

 

Delaware

 

47-2218165

PAG CYCLES MI, LLC

 

Delaware

 

46-3817133

PAG DAVIE P1, LLC

 

Delaware

 

46-3687094

PAG DELAWARE CS, LLC

 

Delaware

 

none

PAG DISTRIBUTOR S1, LLC

 

Delaware

 

87-0766681

PAG EAST, LLC

 

Delaware

 

35-2036025

PAG EDISON B1, LLC

 

Delaware

 

46-2906028

PAG GOODYEAR F1, LLC

 

Delaware

 

86-1024935

PAG GREENWICH B1, LLC

 

Delaware

 

46-4359670

PAG GREENWICH HOLDINGS, LLC

 

Delaware

 

46-4033557

PAG INTERNATIONAL SERVICES, LLC

 

Delaware

 

46-4042748

PAG INVESTMENTS, LLC

 

Delaware

 

27-5082711

PAG LEANDER H1, LLC

 

Delaware

 

none

PAG MADISON L1, LLC

 

Delaware

 

46-0992715

PAG MADISON T1, LLC

 

Delaware

 

46-0983205

PAG MARIN M1, INC.

 

Delaware

 

27-4171554

PAG MARYLAND CS, LLC

 

Delaware

 

none

 


Table of Contents

 

Exact Name of Registrant Guarantor as Specified in its Charter

 

State or Other Jurisdiction of
Incorporation or Organization

 

I.R.S. Employer
Identification Number

PAG MCALLEN H1, LLC

 

Delaware

 

46-3643632

PAG MCALLEN T1, LLC

 

Delaware

 

46-3655017

PAG MENTOR A1, INC.

 

Ohio

 

34-1403202

PAG MICHIGAN HOLDINGS, LLC

 

Delaware

 

30-0193048

PAG NEW JERSEY A1, LLC

 

Delaware

 

47-5025018

PAG NEW JERSEY CS, LLC

 

Delaware

 

81-2315006

PAG NEW JERSEY JL1, LLC

 

Delaware

 

47-5068848

PAG NEW JERSEY JL2, LLC

 

Delaware

 

81-4966517

PAG NEW JERSEY JL3, LLC

 

Delaware

 

none

PAG NEW JERSEY P1, LLC

 

Delaware

 

47-5038322

PAG NORTH ORANGE A1, INC.

 

Delaware

 

none

PAG NORTH SCOTTSDALE BE, LLC

 

Delaware

 

26-1363608

PAG NORTH SCOTTSDALE M1, LLC

 

Delaware

 

none

PAG NORTH SCOTTSDALE PP1, LLC

 

Delaware

 

none

PAG NORTHERN CALIFORNIA MANAGEMENT, INC.

 

Delaware

 

27-1068131

PAG ONTARIO B1, INC.

 

Delaware

 

46-0738871

PAG ORANGE COUNTY L1, INC.

 

Delaware

 

47-4863566

PAG ORANGE COUNTY MANAGEMENT COMPANY, INC.

 

Delaware

 

45-3981423

PAG ORANGE COUNTY RR1, INC.

 

Delaware

 

45-4896142

PAG ORANGE COUNTY S1, INC.

 

Delaware

 

47-0957524

PAG ORLANDO GENERAL, LLC

 

Delaware

 

26-1207380

PAG ORLANDO LIMITED, LLC

 

Delaware

 

26-1206643

PAG ORLANDO PARTNERSHIP, LTD.

 

Florida

 

26-1340023

PAG PENNSYLVANIA CS, LLC

 

Delaware

 

81-2338272

PAG ROSWELL B1, LLC

 

Delaware

 

81-4497213

PAG SAN FRANCISCO N1, INC.

 

Delaware

 

27-3979807

PAG SANTA ANA AVW, INC.

 

Delaware

 

27-1339782

PAG SANTA ANA B1, INC.

 

Delaware

 

45-2267865

PAG SURPRISE T1, LLC

 

Delaware

 

46-2042352

PAG TEMPE M1, LLC

 

Delaware

 

26-1377292

PAG TEXAS MANAGEMENT COMPANY, LLC

 

Delaware

 

45-3981193

PAG TURNERSVILLE AU, LLC

 

Delaware

 

26-4426061

PAG VIRGINIA CS, LLC

 

Delaware

 

none

PAG WASHINGTON A1, LLC

 

Delaware

 

81-2292613

PAG WEST ACQUISITION 9, INC.

 

Delaware

 

none

PAG WEST BAY MIT, LLC

 

Delaware

 

27-3042965

PAG WEST, LLC

 

Delaware

 

13-3914611

PALM AUTO PLAZA, LLC

 

Delaware

 

65-1272503

PEACHTREE NISSAN, INC.

 

Georgia

 

58-1273321

PENSKE CAR RENTAL (DT) MEMPHIS, LLC

 

Delaware

 

32-0442689

PENSKE CAR RENTAL HOLDINGS, LLC

 

Delaware

 

46-0788554

PENSKE CAR RENTAL INDIANA, LLC

 

Delaware

 

80-0877574

PENSKE CAR RENTAL MEMPHIS, LLC

 

Delaware

 

35-2452611

PENSKE COMMERCIAL VEHICLES US, LLC

 

Delaware

 

46-2758677

PETER PAN MOTORS, INC.

 

California

 

94-1747384

PMRC, LLC

 

Delaware

 

22-3881752

PTG OF IDAHO, LLC

 

Delaware

 

84-1953882

PTG OF UTAH, LLC

 

Delaware

 

84-1943235

RELENTLESS PURSUIT ENTERPRISES, INC.

 

California

 

93-1008771

SA AUTOMOTIVE, LTD.

 

Arizona

 

86-0583813

SAU AUTOMOTIVE, LTD.

 

Arizona

 

86-0839423

SCOTTSDALE 101 MANAGEMENT, LLC

 

Delaware

 

26-1363820

SCOTTSDALE FERRARI, LLC

 

Arizona

 

86-0981831

SCOTTSDALE MANAGEMENT GROUP, LTD.

 

Arizona

 

86-0573438

SCOTTSDALE PAINT & BODY, LLC

 

Delaware

 

26-1363898

 


Table of Contents

 

Exact Name of Registrant Guarantor as Specified in its Charter

 

State or Other Jurisdiction of
Incorporation or Organization

 

I.R.S. Employer
Identification Number

SDG AUTOMOTIVE INVESTMENTS, LLC

 

Ohio

 

20-1680626

SIGMA MOTORS INC.

 

Arizona

 

86-1047752

SINGLE SOURCE TRUCK PARTS, LLC

 

Delaware

 

none

SK MOTORS, LLC

 

Delaware

 

32-0212884

SL AUTOMOTIVE, LLC

 

Delaware

 

38-3763696

SOMERSET MOTORS PARTNERSHIP

 

New Jersey

 

22-3186283

SOMERSET MOTORS, INC.

 

New Jersey

 

22-2986160

SUN MOTORS, LLC

 

Delaware

 

30-0438071

TAMBURRO ENTERPRISES, INC.

 

Nevada

 

88-0485938

THE AROUND THE CLOCK FREIGHTLINER GROUP, LLC

 

Oklahoma

 

73-1199515

UAG ARKANSAS FLM, LLC

 

Delaware

 

87-0766675

UAG ATLANTA H1, LLC

 

Delaware

 

30-0282545

UAG ATLANTA IV MOTORS, LLC

 

Georgia

 

58-1092076

UAG CAPITOL, INC.

 

Delaware

 

76-0759095

UAG CAROLINA, INC.

 

Delaware

 

13-3959601

UAG CENTRAL NJ, LLC

 

Delaware

 

90-0131625

UAG CENTRAL REGION MANAGEMENT, LLC

 

Indiana

 

38-3537233

UAG CHANTILLY AU, LLC

 

Delaware

 

87-0766680

UAG CHCC, INC.

 

New Jersey

 

22-2990922

UAG CHEVROLET, INC.

 

New Jersey

 

22-2762327

UAG CITRUS MOTORS, LLC

 

Delaware

 

59-3525335

UAG CLASSIC, INC.

 

Delaware

 

13-3987807

UAG CLOVIS, INC.

 

Delaware

 

76-0759096

UAG CONNECTICUT, LLC

 

Delaware

 

06-1589742

UAG DULUTH, INC.

 

Texas

 

58-1786146

UAG EAST, LLC

 

Delaware

 

13-3944970

UAG ESCONDIDO A1, INC.

 

Delaware

 

20-3697398

UAG ESCONDIDO H1, INC.

 

Delaware

 

20-3697348

UAG ESCONDIDO M1, INC.

 

Delaware

 

20-3697423

UAG FAYETTEVILLE I, LLC

 

Delaware

 

71-0858576

UAG FAYETTEVILLE II, LLC

 

Delaware

 

71-0858577

UAG FAYETTEVILLE III, LLC

 

Delaware

 

71-0858578

UAG FINANCE COMPANY, INC.

 

Delaware

 

13-3953915

UAG GRACELAND II, INC.

 

Delaware

 

13-3991339

UAG HOUSTON ACQUISITION, LTD.

 

Texas

 

38-3542915

UAG HUDSON CJD, LLC

 

Delaware

 

87-0766678

UAG HUDSON, INC.

 

New Jersey

 

22-1919268

UAG INTERNATIONAL HOLDINGS, INC.

 

Delaware

 

51-0393682

UAG KISSIMMEE MOTORS, LLC

 

Delaware

 

58-2361341

UAG LANDERS SPRINGDALE, LLC

 

Delaware

 

71-0846659

UAG LOS GATOS, INC.

 

Delaware

 

76-0759098

UAG MARIN, INC.

 

Delaware

 

76-0759100

UAG MEMPHIS II, INC.

 

Delaware

 

62-1722683

UAG MEMPHIS IV, INC.

 

Delaware

 

62-1722679

UAG MEMPHIS MANAGEMENT, INC.

 

Delaware

 

62-1722677

UAG MENTOR ACQUISITION, LLC

 

Delaware

 

38-3553602

UAG MICHIGAN CADILLAC, LLC

 

Delaware

 

38-3543705

UAG MICHIGAN H1, LLC

 

Delaware

 

42-1539792

UAG MICHIGAN PONTIAC-GMC, LLC

 

Delaware

 

38-3543709

UAG MICHIGAN T1, LLC

 

Delaware

 

38-3543711

UAG MICHIGAN TMV, LLC

 

Delaware

 

38-3544903

UAG MINNEAPOLIS B1, LLC

 

Delaware

 

76-0819658

UAG NANUET II, LLC

 

Delaware

 

22-3784978

UAG NORTHEAST, LLC

 

Delaware

 

13-3914694

 


Table of Contents

 

Exact Name of Registrant Guarantor as Specified in its Charter

 

State or Other Jurisdiction of
Incorporation or Organization

 

I.R.S. Employer
Identification Number

UAG REALTY, LLC

 

Delaware

 

38-3543708

UAG ROYAL PALM M1, LLC

 

Delaware

 

06-1774003

UAG ROYAL PALM, LLC

 

Delaware

 

80-0072974

UAG SAN DIEGO A1, INC.

 

Delaware

 

20-3697335

UAG SAN DIEGO AU, INC.

 

Delaware

 

20-3955972

UAG SAN DIEGO H1, INC.

 

Delaware

 

20-3697304

UAG SAN DIEGO MANAGEMENT, INC.

 

Delaware

 

20-3955897

UAG STEVENS CREEK II, INC.

 

Delaware

 

47-0957526

UAG TEXAS II, INC.

 

Delaware

 

13-3933083

UAG TEXAS, LLC

 

Delaware

 

13-3933080

UAG TULSA HOLDINGS, LLC

 

Delaware

 

51-0410923

UAG TURNERSVILLE REALTY, LLC

 

Delaware

 

38-3543708

UAG VK, LLC

 

Delaware

 

38-3590846

UAG WEST BAY AM, LLC

 

Delaware

 

61-1442389

UAG WEST BAY FM, LLC

 

Delaware

 

86-1088680

UAG WEST BAY IA, LLC

 

Delaware

 

30-0150593

UAG WEST BAY IAU, LLC

 

Delaware

 

61-1442390

UAG WEST BAY IB, LLC

 

Delaware

 

35-2196049

UAG WEST BAY II, LLC

 

Delaware

 

38-3672787

UAG WEST BAY IL, LLC

 

Delaware

 

30-0150590

UAG WEST BAY IM, LLC

 

Delaware

 

37-1458215

UAG WEST BAY IN, LLC

 

Delaware

 

04-3805793

UAG WEST BAY IP, LLC

 

Delaware

 

32-3360132

UAG WEST BAY IV, LLC

 

Delaware

 

32-0060125

UAG WEST BAY IW, LLC

 

Delaware

 

36-4521984

UAG YOUNG II, INC.

 

Delaware

 

13-3985679

UAG-CARIBBEAN, INC.

 

Delaware

 

13-3980142

UNITED AUTO LICENSING, LLC

 

Delaware

 

38-3556189

UNITED AUTO SCOTTSDALE PROPERTY HOLDINGS, LLC

 

Delaware

 

86-1123497

UNITED AUTOCARE PRODUCTS, LLC

 

Delaware

 

13-3922210

UNITED NISSAN, INC.

 

Georgia

 

58-2038392

UNITED NISSAN, INC.

 

Tennessee

 

62-0790848

UNITED RANCH AUTOMOTIVE, LLC

 

Delaware

 

86-1008720

UNITEDAUTO DODGE OF SHREVEPORT, INC.

 

Delaware

 

72-1393145

UNITEDAUTO FIFTH FUNDING, INC.

 

Delaware

 

16-1549850

UNITEDAUTO FINANCE, INC.

 

Delaware

 

16-1456003

UNITEDAUTO FOURTH FUNDING INC.

 

Delaware

 

16-1543345

WEST PALM AUTO MALL, INC.

 

Florida

 

65-0050208

WEST PALM NISSAN, LLC

 

Delaware

 

06-1773996

WESTBURY SUPERSTORE, LTD.

 

New York

 

11-2983989

WTA MOTORS, LTD.

 

Texas

 

33-1011102

YOUNG MANAGEMENT GROUP, INC.

 

Indiana

 

35-1897920

 


(1)  The address of each guarantor is 2555 Telegraph Road, Bloomfield Hills, MI  48302.

 

c/o Penske Automotive Group, Inc.
2555 Telegraph Road
Bloomfield Hills, Michigan 48302
(248) 648-2500

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Each of the Co-Registrant’s Principal Executive Offices)

 

Shane M. Spradlin
Executive Vice President and General Counsel
2555 Telegraph Road
Bloomfield Hills, Michigan 48302
Telephone No.: (248) 648-2560
Facsimile No.: (248) 648-2515

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service of Process for Each of the Co-Registrants)

 


Table of Contents

 

PROSPECTUS

 

Penske Automotive Group, Inc.

 

Debt Securities

Preferred Stock

Common Stock

Warrants

 

We may use this prospectus from time to time to offer debt securities, shares of our preferred stock, shares of our common stock or warrants to purchase our debt securities, preferred stock or common stock. Any or all of the securities may be offered and sold separately or together.

 

In addition, certain selling securityholders to be identified in a prospectus supplement may use this prospectus from time to time to offer shares of common stock or preferred stock, warrants or other securities. To the extent that any selling securityholder resells any securities, the selling securityholder may be required to provide you with this prospectus and a prospectus supplement identifying and containing specific information about the selling securityholder and the terms of the securities being offered.

 

We and/or selling securityholders may offer and sell securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. This prospectus also covers guarantees, if any, of our payment obligations under any debt securities, which may be given by certain of our subsidiaries on terms to be determined at the time of the offering. The debt securities and preferred stock may be convertible into or exchangeable or exercisable for other securities. The specific terms of these securities, and the manner in which these securities will be offered, will be provided in supplements to this prospectus. The prospectus supplements may also add, update or change information contained in this prospectus. Information in this prospectus will be deemed modified or superseded by an accompanying prospectus supplement or other offering materials. You should carefully read this prospectus and any prospectus supplement before you invest.

 

Our common stock is listed on the New York Stock Exchange under the symbol “PAG.” Each prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.

 

For a discussion of factors that you should consider before you invest in our securities, see “Risk Factors” on page 6 of this prospectus.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful and complete. Any representation to the contrary is a criminal offense.

 

The date of this prospectus is November 13, 2019.

 


Table of Contents

 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

About this Prospectus

 

1

Disclosure Regarding Forward-Looking Statements

 

2

Documents Incorporated by Reference into this Prospectus

 

4

The Company

 

5

Risk Factors

 

6

Use of Proceeds

 

7

Description of Debt Securities

 

7

Description of Capital Stock

 

12

Description of Preferred Stock

 

14

Description of Common Stock

 

15

Description of Warrants to Purchase Debt Securities

 

16

Description of Warrants to Purchase Common or Preferred Stock

 

17

Plan of Distribution

 

18

Selling Securityholders

 

19

Legal Matters

 

19

Experts

 

20

Where You Can Find More Information

 

20

 

ABOUT THIS PROSPECTUS

 

This prospectus is part of a registration statement we filed with the U.S. Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, we may sell, from time to time, any combination of the securities described in this prospectus in one or more offerings, and certain selling securityholders to be identified in a prospectus supplement may sell, from time to time, shares of our common stock or preferred stock, warrants or other securities. This prospectus provides you with a general description of the securities we and/or selling securityholders may offer. Each time we and/or selling securityholders sell securities, a prospectus supplement will be provided that contains specific information about the terms of that offering and the specific manner in which such securities may be offered. The prospectus supplement may also add to, update or change information contained in or incorporated by reference into this prospectus. To the extent that any statement made in a prospectus supplement or other offering material is inconsistent with statements made in this prospectus, the statements made in this prospectus will be deemed modified or superseded by those made in the prospectus supplement or other offering material. The prospectus supplement or other offering material may also contain information about any material federal income tax considerations relating to our securities described in the prospectus supplement or other offering material. You should read both this prospectus and any prospectus supplement, together with additional information described under “Documents Incorporated by Reference into this Prospectus” and “Where You Can Find More Information” elsewhere in this prospectus before making an investment decision.

 

This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed or will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under “Where You Can Find More Information” elsewhere in this prospectus.

 

The registration statement that contains this prospectus, including the exhibits to the registration statement, contains additional information about us and the securities offered under this prospectus. That registration statement can be read at the SEC’s web site (http://www.sec.gov) or at the Company’s website (http://www.penskeautomotive.com) mentioned under the heading “Where You Can Find More Information” elsewhere in this prospectus. The information contained on, or accessible through, our corporate web site or any other web site that we may maintain is not part of this prospectus or the registration statement of which this prospectus forms a part.

 

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You should rely only on the information contained in or incorporated by reference into this prospectus. We have not authorized any other person to provide you with different or additional information. If anyone provides you with different or additional information, you should not rely on it. The information in this prospectus is accurate as of the date on the front cover. The information we have filed and will file with the SEC that is incorporated by reference into this prospectus is accurate as of the filing date of those documents. Our business, financial condition, results of operations and prospects may have changed since those dates and may change again.

 

This prospectus may not be used to sell our securities unless it is accompanied by a prospectus supplement or other offering material.

 

As used in this prospectus, the terms the “Company,” “Penske Automotive,” “we,” “us” and “our” may, depending upon the context, refer to Penske Automotive Group, Inc., our consolidated subsidiaries or to all of them taken as a whole.

 

DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS

 

Certain statements in this prospectus or the documents incorporated by reference into this prospectus constitute “forward-looking statements” within the meaning of the Federal Private Securities Litigation Reform Act of 1995. These forward-looking statements are included in various sections of this prospectus and the documents incorporated by reference into this prospectus. Words such as “anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,” “goal,” “plan,” “seek,” “project,” “continue,” “will,” “would,” and variations of such words and similar expressions, are intended to identify such forward-looking statements. We intend for our forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995, and we set forth this statement in order to comply with such safe harbor provisions. Forward-looking statements include, without limitation, statements with respect to:

 

·                 our future financial and operating performance;

 

·                 future acquisitions and dispositions;

 

·                  future potential capital expenditures and securities repurchases;

 

·                  our ability to realize cost savings and synergies;

 

·                  our ability to respond to economic cycles;

 

·                  trends in the automotive retail industry and commercial vehicles industries and in the general economy in the various countries in which we operate;

 

·                  our ability to access the remaining availability under our credit agreements;

 

·                  our liquidity;

 

·                  performance of joint ventures, including Penske Truck Leasing (“PTL”);

 

·                  future foreign exchange rates and geopolitical events, such as Brexit;

 

·                  the outcome of various legal proceedings;

 

·                  results of self-insurance plans;

 

·                  trends affecting the automotive industry generally and our future financial condition or results of operations; and

 

·                  our business strategy.

 

Our actual results may differ materially from those anticipated in these forward-looking statements. These forward-looking statements are affected by risks, uncertainties and assumptions that we make, including among other things, the factors that are described in “Risk Factors” and:

 

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·                  our business and the automotive retail and commercial vehicles industries in general are susceptible to adverse economic conditions, including changes in interest rates, foreign exchange rates, customer demand, customer confidence, fuel prices, unemployment rates and credit availability;

 

·                  the political and economic outcome of Brexit in the U.K.;

 

·                  increased tariffs, import product restrictions, and foreign trade risks that may impair our ability to sell foreign vehicles profitably, including any eventual tariffs resulting from the threats from the Trump Administration to add 25% tariffs on foreign vehicles or parts or from the continuing trade negotiations and trade tensions between the U.S. and other countries;

 

·                  the number of new and used vehicles sold in our markets;

 

·                  the effect on our businesses of the trend of electrification of vehicle engines, new mobility technologies such as shared vehicle services, such as Uber and Lyft, and the eventual availability of driverless vehicles;

 

·                  vehicle manufacturers exercise significant control over our operations, and we depend on them and the continuation of our franchise and distribution agreements in order to operate our business;

 

·                  we depend on the success, popularity and availability of the brands we sell, and adverse conditions affecting one or more vehicle manufacturers, including the adverse impact on the vehicle and parts supply chain due to natural disasters or other disruptions that interrupt the supply of vehicles and parts to us (including any disruptions resulting from the more vigorous fuel economy testing and Co2 emissions requirements in the United Kingdom and Europe), may negatively impact our revenues and profitability;

 

·                  we are subject to the risk that a substantial number of our new or used inventory may be unavailable due to recall or other reasons;

 

·                  the success of our commercial vehicle distribution operations and engine and power systems distribution operations depends upon continued availability of the vehicles, engines, power systems and other parts we distribute, demand for those vehicles, engines, power systems and parts, and general economic conditions in those markets;

 

·                  a restructuring of any significant vehicle manufacturer or supplier;

 

·                  our operations may be affected by severe weather, such as the recent hurricanes in Puerto Rico, Florida and Texas, or other periodic business interruptions;

 

·                  we have substantial risk of loss not covered by insurance;

 

·                  we may not be able to satisfy our capital requirements for acquisitions, facility renovation projects, financing the purchase of our inventory or refinancing of our debt when it becomes due;

 

·                  our level of indebtedness may limit our ability to obtain financing generally and may require that a significant portion of our cash flow be used for debt service;

 

·                  non-compliance with the financial ratios and other covenants under our credit agreements and operating leases;

 

·                  higher interest rates may significantly increase our variable rate interest costs and, because many customers finance their vehicle purchases, decrease vehicle sales;

 

·                  our operations outside of the U.S. subject our profitability to fluctuations relating to changes in foreign currency values, which have most recently occurred as a result of the June 2016 U.K. referendum for Brexit;

 

·                  with respect to PTL, changes in the financial health of its customers, labor strikes or work stoppages by its employees, a reduction in PTL’s asset utilization rates, continued availability from truck manufacturers and suppliers of vehicles and parts for its fleet, changes in values of used trucks which affects PTL’s profitability on truck sales, compliance costs in regards to its trucking fleet and truck drivers, its ability to retain qualified drivers and technicians, risks associated with its participation in multi-employer pension plans, conditions in the capital markets to assure PTL’s continued availability of capital to purchase trucks, the effect of changes in

 

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lease accounting rules on PTL’s customers’ purchase/lease decisions and industry competition, each of which could impact distributions to us;

 

·                  we are dependent on continued security and availability of our information technology systems and we may be subject to fines, penalties, and other costs under applicable privacy laws if we do not maintain our confidential customer and employee information properly;

 

·                  if we lose key personnel, especially our Chief Executive Officer, or are unable to attract additional qualified personnel;

 

·                  new or enhanced regulations relating to automobile dealerships including those being considered by the Financial Conduct Authority in the U.K. restricting certain compensation we receive relating to automotive financing in the U.K.;

 

·                  changes in tax, financial or regulatory rules or requirements;

 

·                  we could be subject to legal and administrative proceedings which, if the outcomes are adverse to us, could have a material adverse effect on our business;

 

·                  if state dealer laws in the U.S. are repealed or weakened, our automotive dealerships may be subject to increased competition and may be more susceptible to termination, non-renewal or renegotiation of their franchise agreements;

 

·                  some of our directors and officers may have conflicts of interest with respect to certain related party transactions and other business interests; and

 

·                  shares of our common stock eligible for future sale may cause the market price of our common stock to drop significantly, even if our business is doing well.

 

We urge you to carefully consider these risk factors in evaluating all forward-looking statements regarding our business and you are cautioned not to place undue reliance on the forward-looking statements contained or incorporated by reference herein. All forward-looking statements attributable to us are qualified in their entirety by this cautionary statement.

 

You should be aware that any forward-looking statement made by us in this prospectus or in the documents incorporated by reference into this prospectus, or elsewhere, speaks only as of the date on which we make it. New risks and uncertainties come up from time to time, and it is impossible for us to predict these events or how they may affect us. Except as otherwise required to be disclosed in periodic reports required to be filed by public companies with the SEC pursuant to the SEC’s rules, we have no duty to update or revise these forward-looking statements. In light of these risks and uncertainties, you should keep in mind that any scenarios or results contained in any forward-looking statement made in this prospectus or elsewhere might not occur.

 

Manufacturer disclaimer

 

No domestic or foreign manufacturer or distributor or any of their affiliates has been involved, directly or indirectly, in the preparation of this prospectus or the registration statement of which this prospectus forms a part. No automobile manufacturer or distributor or any of their affiliates has made or been authorized to make any statements or representations in connection with this prospectus, no manufacturer or distributor or any of their affiliates has provided any information or materials that were used in connection with the prospectus, and no automobile manufacturer or distributor or any of their affiliates has any responsibility for the accuracy or completeness of this prospectus or for the registration statement of which this prospectus forms a part.

 

DOCUMENTS INCORPORATED BY REFERENCE INTO THIS PROSPECTUS

 

We file annual, quarterly and current reports and other information with the SEC. See “Where You Can Find More Information.” We filed a registration statement on Form S-3 to register with the SEC the securities described in this prospectus. This prospectus is part of that registration statement. As permitted by SEC rules, this prospectus

 

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does not contain all the information contained in the registration statement or the exhibits to the registration statement. The SEC allows us to incorporate by reference the information we file with it into this prospectus. This means that we can disclose important business, financial and other information to you by referring you to other documents separately filed with the SEC.

 

The following documents are incorporated into this prospectus by reference:

 

·                our Annual Report on Form 10-K for the year ended December 31, 2018;

 

·                our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019, June 30, 2019 and September 30, 2019;

 

·                the portions of our definitive proxy statement on Schedule 14-A filed on March 19, 2019 that are incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2018;

 

·                our Current Reports on Form 8-K filed on January 30, 2019, May 10, 2019, June 27, 2019, July 17, 2019 and October 16, 2019; and

 

·                all documents filed by us under Section 13(a), 13(c), 14 or 15(d) of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of this prospectus and before the termination of the applicable offering (except for information furnished to the SEC that is not deemed to be “filed” for purposes of the Exchange Act).

 

Any statement made in this prospectus, a prospectus supplement or a document incorporated by reference in this prospectus or a prospectus supplement will be deemed to be modified or superseded for purposes of this prospectus and any applicable prospectus supplement to the extent that a statement contained in an amendment or subsequent amendment to this prospectus or an applicable prospectus supplement or in any other subsequently filed document incorporated by reference herein or therein adds to, updates or changes that statement. Any statement so affected will not be deemed, except as so affected, to constitute a part of this prospectus or any applicable prospectus supplement.

 

You may obtain a copy of these filings, excluding exhibits (unless such exhibits are specifically incorporated by reference), free of charge, by oral or written request directed to: Penske Automotive Group, Inc., 2555 Telegraph Road, Bloomfield Hills, Michigan, 48302, Attention: General Counsel, Phone: (248) 648-2500.

 

THE COMPANY

 

We are a diversified international transportation services company that operates automotive and commercial truck dealerships principally in the United States, Canada, and Western Europe, and distributes commercial vehicles, diesel engines, gas engines, power systems and related parts and services principally in Australia and New Zealand.

 

Retail Automotive Dealership. We believe we are the second largest automotive retailer headquartered in the U.S. as measured by the $20.8 billion in total retail automotive dealership revenue we generated in 2018. As of September 30, 2019, we operated 333 retail automotive franchises, of which 149 franchises are located in the U.S. and 184 franchises are located outside of the U.S. The franchises outside the U.S. are located primarily in the U.K. In the nine months ended September 30, 2019, we retailed and wholesaled more than 478,000 vehicles. We are diversified geographically, with 56% of our total retail automotive dealership revenues in the nine months ended September 30, 2019 generated in the U.S. and Puerto Rico and 44% generated outside the U.S. We offer over 35 vehicle brands, with 70% of our retail automotive dealership revenue in the nine months ended September 30, 2019 generated from premium brands, such as Audi, BMW, Land Rover, Mercedes-Benz and Porsche. Each of our franchised dealerships offers a wide selection of new and used vehicles for sale. In addition to selling new and used vehicles, we generate higher-margin revenue at each of our dealerships through maintenance and repair services and the sale and placement of third-party finance and insurance products, third-party extended service and maintenance contracts and replacement and aftermarket automotive products. We operate our franchised dealerships under franchise agreements with a number of automotive manufacturers and distributors that are subject to certain rights and restrictions typical of the industry.

 

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We also operate fifteen used vehicle supercenters in the U.S. and the U.K. which retail and wholesale used vehicles under a one price, “no-haggle” methodology. Our CarSense operations in the U.S. consist of six locations operating in the Philadelphia and Pittsburgh, Pennsylvania market areas, including an additional used vehicle supercenter in the Philadelphia market that we opened in the third quarter of 2019.  Our CarShop operations in the U.K. consist of nine retail locations and a vehicle preparation center.

 

Retail Commercial Truck Dealership. We operate a heavy and medium duty truck dealership group known as Premier Truck Group (“PTG”) offering primarily Freightliner and Western Star branded trucks, with locations in Texas, Oklahoma, Tennessee, Georgia, Utah, Idaho and Canada. In July 2019 we acquired Warner Truck Centers, with six locations in Utah and Idaho.  As of September 30, 2019, PTG operated 25 locations.  PTG also offers a full range of used trucks available for sale as well as service and parts departments, providing a full range of maintenance and repair services.

 

Commercial Vehicle Distribution. We are the exclusive importer and distributor of Western Star heavy-duty trucks (a Daimler brand), MAN heavy and medium duty trucks and buses (a VW Group brand), and Dennis Eagle refuse collection vehicles, together with associated parts, across Australia, New Zealand and portions of the Pacific. This business, known as Penske Commercial Vehicles Australia (“PCV Australia”), distributes commercial vehicles and parts to a network of more than 70 dealership locations, including ten company-owned retail commercial vehicle dealerships. One of these company-owned dealerships was acquired in February 2019 in New Zealand.

 

We are also a leading distributor of diesel and gas engines and power systems, principally representing MTU, Detroit Diesel, Allison Transmission, MTU Onsite Energy, and Rolls Royce Power Systems. This business, known as Penske Power Systems (“PPS”), offers products across the on- and off-highway markets, including in the construction, mining, marine, and defense sectors, in Australia, New Zealand and portions of the Pacific and supports full parts and aftersales service through a network of branches, field locations and dealers across the region. The on-highway portion of this business complements our PCV Australia distribution business, including integrated operations at retail locations selling PCV brands.

 

Penske Truck Leasing. We hold a 28.9% ownership interest in Penske Truck Leasing Co., L.P. (“PTL”), a leading provider of transportation and supply chain services. PTL is capable of meeting customers’ needs across the supply chain with a broad product offering that includes full-service truck leasing, truck rental and contract maintenance, along with logistic services such as dedicated contract carriage, distribution center management, transportation management, lead logistics provider services and dry van truckload carrier services. Effective September 1, 2019, Penske Transportation Solutions (PTS) has become the new universal brand name for PTL’s various business lines, Penske Truck Leasing, Penske Logistics, Epes Transport Systems, Penske Vehicle Services and related products and services to better articulate the breadth of its capabilities.  PTL is owned 41.1% by Penske Corporation, 28.9% by us, and 30.0% by Mitsui & Co., Ltd. (“Mitsui”). We account for our investment in PTL under the equity method, and we therefore record our share of PTL’s earnings on our statements of income under the caption “Equity in earnings of affiliates,” which also includes the results of our other equity method investments.

 

We are incorporated in the state of Delaware and began dealership operations in October 1992. Our telephone number is (248) 648-2500 and our website is http://www.penskeautomotive.com. The information on our website is not part of this prospectus.

 

RISK FACTORS

 

An investment in our securities involves a high degree of risk. Prior to making a decision about investing in our securities, you should carefully consider the risks and uncertainties described under “Risk Factors” or “Disclosure Regarding Forward-Looking Statements” in the applicable prospectus supplement and in our most recent annual report on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, including any amendments to such reports, incorporated in the registration statement of which this prospectus forms a part, together with all other information contained and incorporated by reference in this prospectus and the applicable prospectus supplement. The risks and uncertainties described herein and therein are not the only ones facing us. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also occur. The occurrence of any of those risks and uncertainties may materially adversely affect our financial condition, results of operations,

 

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cash flows or business. In that case, the price or value of our securities could decline and you could lose all or part of your investment.

 

USE OF PROCEEDS

 

Unless otherwise described in the applicable prospectus supplement, the net proceeds from the sale of the offered securities by us will be used for general corporate purposes, which may include repayment of indebtedness, the financing of capital expenditures, future acquisitions and additions to our working capital. Additional information on the use of net proceeds from any sale of securities offered by us pursuant to this prospectus may be set forth in the prospectus supplement or other offering material relating to such offering.

 

We will not receive any proceeds from the resale of securities by selling securityholders pursuant to this prospectus and the applicable prospectus supplement.

 

DESCRIPTION OF DEBT SECURITIES

 

This section describes the general terms that will apply to any debt securities that we may offer in the future and to which a future prospectus supplement may relate. At the time that we offer debt securities, we will describe in the prospectus supplement that relates to that offering (1) the specific terms of the debt securities and (2) the extent to which the general terms described in this section apply to those debt securities.

 

We may issue debt securities consisting of senior securities and subordinated securities that may be secured or unsecured. The senior securities are to be issued under an indenture to be entered into later between Penske Automotive and The Bank of New York Mellon Trust Company, N.A., as trustee. The subordinated securities are to be issued under a separate indenture, dated as of November 21, 2014, between Penske Automotive and The Bank of New York Mellon Trust Company, N.A., as trustee. The form of the indenture for the senior securities and the executed indenture for the subordinated securities are incorporated by reference as exhibits to the registration statement of which this prospectus forms a part. In the discussion that follows, we summarize particular provisions of the indentures. Our discussion of indenture provisions is only a summary and is not complete. You should read the indentures including changes to be filed as part of any supplemental prospectus, for a more complete understanding of the provisions we describe.

 

The aggregate principal amount of debt securities that we may issue under each of the indentures is unlimited. The indenture allows us to reopen a previous issue of a series of debt securities and issue additional debt securities of that issue.

 

To the extent that debt securities are guaranteed, the guarantees will be set forth in the applicable indenture or supplements thereto. To the extent that debt securities or related guarantees are secured, the security interest will be granted under and subject to the applicable indenture or supplements thereto, security agreement, pledge agreements, mortgages, intercreditor agreements, lien subordination agreements and other documents as may be required.

 

General

 

Each prospectus supplement relating to a particular offering of debt securities will describe the specific terms of debt securities. Those specific terms will include the following:

 

·                                          the title of the debt securities;

 

·                                          any limit on the aggregate principal amount of the debt securities of a particular series;

 

·                                          whether any of the debt securities are to be issuable in permanent global form;

 

·                                          the date or dates on which the debt securities will mature;

 

·                                          the rate or rates at which the debt securities will bear interest, if any, or the formula pursuant to which such rate or rates shall be determined, and the date or dates from which any such interest will accrue;

 

·                                          the payment dates on which interest, if any, on the debt securities will be payable and the regular record dates which will be used to determine who is entitled to receive each interest payment;

 

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·                                          the terms, if any, upon which the debt securities may be converted into shares of our common stock;

 

·                                          any mandatory or optional sinking fund or analogous provisions;

 

·                                          each office or agency where, subject to the terms of the applicable indenture, the principal of and any premium and interest on the debt securities will be payable and each office or agency where, subject to the terms of the applicable indenture, the debt securities may be presented for registration of transfer or exchange;

 

·                                          the date, if any, after which and the price or prices at which the debt securities may be redeemed, in whole or in part at our option or at the option of the holder of the debt securities, or according to any mandatory redemption provisions, and the other detailed terms and provisions of any such optional or mandatory redemption provisions;

 

·                                          the denominations in which any debt securities will be issuable, if other than denominations of $1,000 and any integral multiple thereof;

 

·                                          the portion of the principal amount of the debt securities, if other than the principal amount, payable upon acceleration of maturity;

 

·                                          the person(s), if other than the trustee, who shall be the security registrar, the initial paying agent and the depositary for the debt securities;

 

·                                          the terms of subordination applicable to any series of subordinated securities;

 

·                                          the terms of any guarantees; and

 

·                                          any other terms of the debt securities inconsistent with the provisions of the indentures.

 

Except where specifically described in the applicable prospectus supplement, the indentures do not contain any covenants designed to protect holders of the debt securities against a reduction in our creditworthiness, including in the event of a highly leveraged transaction, or to prohibit other transactions which may adversely affect holders of the debt securities.

 

We may issue debt securities as original issue discount securities to be sold at a substantial discount below their stated principal amounts. We will describe in the relevant prospectus supplement any special United States federal income tax considerations that may apply to debt securities issued with such an original issue discount. Special United States tax considerations applicable to any debt securities that are denominated in a currency other than United States dollars or that use an index to determine the amount of payments of principal of and any premium and interest on the debt securities will also be set forth in a prospectus supplement.

 

Global Securities

 

According to the indentures, so long as the depositary’s nominee is the registered owner of a global security, that nominee will be considered the sole owner of the debt securities represented by the global security for all purposes. Except as provided in the relevant prospectus supplement, owners of beneficial interests in a global security will not be entitled to have debt securities of the series represented by the global security registered in their names, will not receive or be entitled to receive physical delivery of debt securities of such series in definitive form and will not be considered the owners or holders of the debt securities under the indentures. Principal of, premium, if any, and interest on a global security will be payable in the manner described in the relevant prospectus supplement.

 

Form, Exchange and Transfer

 

We will issue the debt securities of each series only in registered form, without coupons, and, unless otherwise specified in the applicable prospectus supplement, only in denominations of $1,000 and integral multiples thereof.

 

Holders may, at their option, but subject to the terms of the indentures and the limitations that apply to global securities, exchange their debt securities for other debt securities of the same series containing identical terms and provisions, in any authorized denomination and of a like tenor and aggregate principal amount.

 

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Subject to the terms of the indentures and the limitations that apply to global securities, holders may exchange debt securities as provided above. No service charge applies for any registration of transfer or exchange of debt securities, but the holder may have to pay any tax or other governmental charge associated with registration of transfer or exchange. We have appointed the trustee as security registrar. Any transfer agent (in addition to the security registrar) initially designated by us for any debt securities will be named in the applicable prospectus supplement. We may at any time designate additional transfer agents or cancel the designation of any transfer agent or approve a change in the office through which any transfer agent acts. However, we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.

 

If the debt securities are to be partially redeemed, we will not be required to:

 

·                                          issue or register the transfer of or exchange any debt security during a period beginning 15 days before the day of the selection for redemption of the debt securities of the applicable series and ending on the close of business on the day of such selection; or

 

·                                          register the transfer of or exchange any debt security selected for redemption, in whole or in part, except the unredeemed portion of any debt security being redeemed in part.

 

Payment and Paying Agents

 

We will pay interest on a debt security on any interest payment date to the registered holder of the debt security as of the close of business on the regular record date for payment of interest. If the debt securities do not remain in book entry form, the record date for each interest payment date will be the close of business on the fifteenth calendar day immediately preceding the applicable interest payment date. In such instance, we will pay such interest either:

 

·                                          on a special record date between 10 and 15 days before the payment; or

 

·                                          in any other lawful manner of payment that is consistent with the requirements of any securities exchange on which the debt securities may be listed for trading.

 

We will pay the principal of and any premium and interest on the debt securities at the office of the paying agent or paying agents that we designate. We may pay interest by check mailed to the address of the person entitled to the payment as the address appears in the security register. We have designated the corporate trust office of the trustee as our sole paying agent for payments on the debt securities. Any other paying agents initially designated by us for the debt securities will be named in the applicable prospectus supplement. We may at any time designate additional paying agents, rescind the designation of any paying agent or approve a change in the office through which any paying agent acts.

 

Any money paid by us to a paying agent for the payment of the principal of or any premium or interest on any debt security which remains unclaimed at the end of two years after the principal, premium or interest has become due and payable may be repaid to us at our request.

 

Subordination

 

We may issue subordinated securities from time to time in one or more series under the subordinated indenture. Our subordinated securities will be subordinated and junior in right of payment to certain of our other indebtedness to the extent set forth in the applicable prospectus supplement.

 

Guarantees

 

Certain of our material domestic subsidiaries named as registrants in the registration statement of which this prospectus is a part, or any combination of them, may, jointly and severally, guarantee any or all of the series of debt securities. Guarantees may be full or limited, senior or subordinated, secured or unsecured, or any combination thereof. In all cases, however, the obligations of each guarantor under its guarantee will be limited as necessary to prevent the guarantee from being rendered voidable under fraudulent conveyance, fraudulent transfer or similar laws affecting the rights of creditors generally. The guarantees will not place a limitation on the amount of additional indebtedness that may be incurred by the guarantors.

 

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Satisfaction and Discharge

 

We may be discharged from our obligations on the debt securities of any series that have matured or will mature or be redeemed within one year if we deposit with the trustee enough cash or U.S. government obligations to pay all the principal, interest and any premium due to the stated maturity date or redemption date of debt securities.

 

Merger and Consolidation

 

Each indenture provides that we may consolidate or merge with or into any other corporation and we may sell, lease or convey all or substantially all of our assets to any corporation, organized and existing under the laws of the United States of America or any U.S. state, provided that the corporation (if other than us) formed by or resulting from any such consolidation or merger or which shall have received such assets shall assume payment of the principal of (and premium, if any), any interest on and any additional amounts payable with respect to the debt securities and the performance and observance of all of the covenants and conditions of such indenture to be performed or observed by us.

 

Modification and Waiver

 

The indentures provide that we and the trustee may modify and amend the indentures with the consent of the holders of a majority in principal amount of the outstanding debt securities of each series affected by the modification or amendment, provided that no such modification or amendment may, without the consent of the holder of each outstanding debt security affected by the modification or amendment:

 

·                                          change the stated maturity of the principal of, or any installment of interest on or any additional amounts payable with respect to, any debt security or change the redemption price;

 

·                                          reduce the principal amount of, or interest on, any debt security or reduce the amount of principal which could be declared due and payable prior to the stated maturity;

 

·                                          change the place or currency of any payment of principal or interest on any debt security;

 

·                                          impair the right to institute suit for the enforcement of any payment on or with respect to any debt security;

 

·                                          reduce the percentage in principal amount of the outstanding debt securities of any series, the consent of whose holders is required to modify or amend each indenture; or

 

·                                          modify the foregoing requirements or reduce the percentage of outstanding debt securities necessary to waive any past default to less than a majority.

 

Except with respect to certain fundamental provisions, the holders of at least a majority in principal amount of outstanding debt securities of any series may, with respect to such series, waive past defaults under each indenture.

 

Events of Default, Waiver and Notice

 

Unless otherwise provided in the applicable prospectus supplement and supplemental indenture, an event of default with respect to any debt security of any series is defined in each indenture as being:

 

·                                          our default in payment of any interest on or any additional amounts payable in respect of any debt security of that series which remains uncured for a period of 30 days;

 

·                                          our default in payment of principal (and premium, if any) on the debt securities of that series when due either at maturity, upon optional or mandatory redemption, as a sinking fund installment, by declaration or otherwise;

 

·                                          our default in the performance or breach of any other covenant or warranty in respect of the debt securities of such series in each indenture which shall not have been remedied for a period of 90 days after notice;

 

·                                          our bankruptcy, insolvency or reorganization; and

 

·                                          any other event of default established for the debt securities of such series set forth in the applicable prospectus supplement and supplemental indenture.

 

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Each indenture provides that the trustee may withhold notice to the holders of the debt securities of any default with respect to any series of debt securities (except in payment of principal of, or interest on, the debt securities) if the trustee considers it in the interest of the holders of the debt securities of such series to do so.

 

Each indenture also provides that:

 

·                                          if an event of default due to a default in payment of principal of, or interest on, any series of debt securities, or because of a default in the performance or breach of any other covenant or agreement applicable to the debt securities of such series but not applicable to all outstanding debt securities, shall have occurred and be continuing, either the trustee or the holders of not less than 25% in principal amount of the outstanding debt securities of such series then may declare the principal of all debt securities of that series, or such lesser amount as may be provided for in the debt securities of that series, and interest accrued thereon, to be due and payable immediately; and

 

·                                          if the event of default resulting from our default in the performance of any of the other covenants or agreements in each indenture applicable to all outstanding debt securities under such indenture or certain events of bankruptcy, insolvency and reorganization shall have occurred and be continuing, either the trustee or the holders of not less than 25% in principal amount of all outstanding debt securities (treated as one class) may declare the principal of all debt securities, or such lesser amount as may be provided for in such securities, and interest accrued thereon, to be due and payable immediately,

 

but upon certain conditions such declarations may be annulled and past defaults may be waived (except a continuing default in payment of principal of, or premium or interest on, the debt securities) by the holders of a majority in principal amount of the outstanding debt securities of such series (or of all series, as the case may be).

 

The holders of a majority in principal amount of the outstanding debt securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to debt securities of such series provided that such direction shall not be in conflict with any rule of law or the applicable indenture and shall not be unduly prejudicial to the holders not taking part in such direction. The trustee may also take any other action it deems proper which is consistent with the holders’ direction. If an event of default or other default occurs and is continuing after any applicable notice and/or cure period, then the trustee may in its discretion (and subject to the rights of the holders to control remedies as described above and certain other conditions specified in the indentures) bring such judicial proceedings as the trustee shall deem appropriate or proper.

 

The indentures provide that no holder of any debt security will have any right to institute any proceeding, judicial or otherwise, with respect to the indentures for the appointment of a receiver or trustee for any other remedy thereunder unless:

 

·                                          that holder has previously given the trustee written notice of a continuing event of default;

 

·                                          the holders of not less than 25% in principal amount of the outstanding debt securities of any series have made written request to the trustee to institute proceedings in respect of that event of default and have offered the trustee reasonable indemnity against costs and liabilities incurred in complying with such request; and

 

·                                          for 60 days after receipt of such notice, request and offer of indemnity, the trustee has failed to institute any such proceeding and no direction inconsistent with such request has been given to the trustee during such 60-day period by the holders of a majority in principal amount of outstanding debt securities of that series.

 

Furthermore, no holder will be entitled to institute any such action if and to the extent that such action would disturb or prejudice the rights of other holders.

 

However, each holder has an absolute and unconditional right to receive payment when due and to bring a suit to enforce that right. We are required to furnish to the trustee under each indenture annually a statement as to our performance or fulfillment of our obligations under the applicable indenture and noting any default in such performance of fulfillment.

 

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The Trustee

 

The Bank of New York Mellon Trust Company, N.A. will serve as the trustee under each indenture.

 

DESCRIPTION OF CAPITAL STOCK

 

The following description of our capital stock is only a summary and is subject to the provisions of our certificate of incorporation and by-laws, in each case as amended, which are included as exhibits to the registration statement on Form S-3 of which this prospectus forms a part, and the applicable provisions of the laws of Delaware, our State of incorporation.

 

General

 

Our authorized capital stock consists of (a) 240,000,000 shares of voting common stock, par value $0.0001 per share, (b) 7,125,000 shares of non-voting common stock, par value $0.0001 per share, (c) 20,000,000 shares of Class C common stock, par value $0.0001 per share, and (d) 100,000 shares of preferred stock, par value $0.0001 per share. As of November 13, 2019 we had 81,064,616 outstanding shares of voting common stock and no outstanding shares of non-voting common stock, Class C common stock, or preferred stock. As of November 13, 2019, approximately 2.3 million shares of common stock were reserved for issuance to employees under our 2015 Equity Incentive Plan.

 

The following summary of the material terms and provisions of our capital stock is not complete and is subject to the terms included in our restated certificate of incorporation, our by-laws and Delaware law. Reference is made to those documents and to Delaware law for a detailed description of the provisions summarized below.

 

Limitation on Liability and Indemnification Matters

 

Our certificate of incorporation limits the liability of our directors to our Company and our stockholders to the fullest extent permitted by Delaware law. Specifically, our directors are not personally liable for money damages for breach of fiduciary duty as a director, except for liability:

 

·                                          under Section 174 of the Delaware General Corporation Law, which concerns unlawful payments of dividends, stock purchases or redemptions;

 

·                                          for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

 

·                                          for any breach of the director’s duty of loyalty to us or our stockholders; and

 

·                                          for any transaction from which the director derived an improper personal benefit.

 

Our certificate of incorporation and bylaws also contain provisions indemnifying our directors, officers, employees and agents to the fullest extent permitted by Delaware law. The indemnification permitted under Delaware law is not exclusive of any other rights to which such persons may be entitled under our by-laws, any agreement, a vote of stockholders or otherwise.

 

In addition, we maintain directors’ and officers’ liability insurance to provide our directors and officers with insurance coverage for losses arising from claims based on breaches of duty, negligence, error and other wrongful acts.

 

Anti-takeover Effects of Our Certificate of Incorporation and By-laws and Provisions of Delaware Law

 

A number of provisions in our certificate of incorporation, by-laws and Delaware law may make it more difficult to acquire control of us by various means. These provisions could deprive the stockholders of opportunities to realize a premium on the shares of common stock owned by them. In addition, these provisions may adversely affect the prevailing market price of the common stock. These provisions are intended to:

 

·                                          enhance the likelihood of continuity and stability in the composition of the board and in the policies formulated by the board;

 

·                                          discourage certain types of transactions which may involve an actual or threatened change in control of us;

 

·                                          discourage certain tactics that may be used in proxy fights;

 

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·                                          encourage persons seeking to acquire control of us to consult first with the board of directors to negotiate the terms of any proposed business combination or offer; and

 

·                                          reduce our vulnerability to an unsolicited proposal for a takeover that does not contemplate the acquisition of all of our outstanding shares or that is otherwise unfair to our stockholders.

 

No Stockholder Action Without a Meeting. Our certificate of incorporation and by-laws provide that stockholders may only take action at an annual or special meeting.

 

Special Meetings of Stockholders. Our by-laws provide that special meetings of our stockholders may be called only by the board of directors, the chairman of the board or the chief executive officer and must be called by the chief executive officer only upon the request of the holders of a majority of the outstanding shares of capital stock entitled to vote. This limitation on the right of stockholders to call a special meeting could make it more difficult for stockholders to initiate actions that are opposed by the board of directors, the chairman of the board or the chief executive officer. These actions could include the removal of an incumbent director or the election of a stockholder nominee as a director. They could also include the implementation of a rule requiring stockholder ratification of specific defensive strategies that have been adopted by the board of directors with respect to unsolicited takeover bids. In addition, the limited ability of the stockholders to call a special meeting of stockholders may make it more difficult to change the existing board and management.

 

Issuance of Preferred Stock. The ability of our board to establish the rights and issue substantial amounts of preferred stock without the need for stockholder approval, while providing desirable flexibility in connection with possible acquisitions, financings and other corporate transactions, may among other things, discourage, delay, defer or prevent a change in control of our Company.

 

Authorized But Unissued Shares of Common Stock. The authorized but unissued shares of common stock are available for future issuance without stockholder approval. These additional shares may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized but unissued shares of common stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.

 

Section 203 of the Delaware General Corporation Law. We must comply with the provisions of Section 203 of the Delaware General Corporation Law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner.

 

A “business combination” includes a merger, consolidation, sale or other disposition of assets having an aggregate value in excess of 10% of the consolidated assets of the corporation and some transactions that would increase the interested stockholder’s proportionate share ownership in the corporation. An “interested stockholder” is a person who, together with affiliates and associates, owns, or, in some cases, within three years prior, did own, 15% or more of the corporation’s voting stock. Under Section 203, a business combination between us and an interested stockholder is prohibited unless it satisfies one of the following three conditions:

 

·                                          our board of directors must have previously approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;

 

·                                          upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, excluding, for purposes of determining the number of shares outstanding, shares owned by (1) persons who are directors and also officers and (2) employee stock plans, in some instances; and

 

·                                          the business combination is approved by a majority of our board of directors and authorized at an annual or special meeting of the stockholders by the affirmative vote of the holders of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder.

 

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DESCRIPTION OF PREFERRED STOCK

 

General

 

Subject to limitations prescribed by Delaware law and our certificate of incorporation, our board of directors is authorized to issue, from the authorized but unissued shares of capital stock, preferred stock in series and to establish from time to time the number of shares of preferred stock to be included in the series and to fix the designation and any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption of the shares of each series, and such other subjects or matters as may be fixed by resolution of our board of directors or one of its duly authorized committees. As of the date of this prospectus, we have not issued any shares of preferred stock.

 

Reference is made to any prospectus supplement relating to any series of shares of preferred stock being offered in such prospectus supplement for the specific terms of the series, including:

 

·                                          the title and stated value of the series of shares of preferred stock;

 

·                                          the number of shares of the series of shares of preferred stock offered, the liquidation preference per share and the offering price of such shares of preferred stock;

 

·                                          the dividend rate(s), period(s) and/or payment date(s) or the method(s) of calculation for those values relating to the shares of preferred stock of the series;

 

·                                          the date from which dividends on shares of preferred stock of the series shall cumulate, if applicable;

 

·                                          the procedures for any auction and remarketing, if any, for shares of preferred stock of the series;

 

·                                          the provision for a sinking fund, if any, for shares of preferred stock of the series;

 

·                                          the provision for redemption, if applicable, of shares of preferred stock of the series;

 

·                                          any listing of the series of shares of preferred stock on any securities exchange;

 

·                                          the terms and conditions, if applicable, upon which shares of preferred stock of the series will be convertible into shares of common stock or other securities, including the conversion price, or manner of calculating the conversion price;

 

·                                          whether interests in shares of preferred stock of the series will be represented by global securities;

 

·                                          a discussion of federal income tax considerations applicable to shares of preferred stock of the series;

 

·                                          the relative ranking and preferences of shares of preferred stock of the series as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs;

 

·                                          any limitations on issuance of any series of shares of preferred stock ranking senior to or on a parity with the series of shares of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs;

 

·                                          any limitations on direct or beneficial ownership and restrictions on transfer of shares of preferred stock of the series; and

 

·                                          any additional rights, preferences, qualifications, limitations and restrictions of the series.

 

Any shares of preferred stock sold hereunder, or issued upon conversion, exercise or exchange of other securities sold hereunder, will be duly authorized, validly issued and, to the extent provided in the applicable certificate of designations, fully paid and nonassessable. This means that, to the extent provided in the applicable certificate of designations, you have paid the full purchase price for your shares and will not be assessed any additional amount for your shares.

 

Our board of directors will designate the transfer agent and registrar for each series of preferred stock and the exchange or market on which such series will be listed or eligible for trading, if any, at the time it authorizes such series.

 

To the extent that applicable law or the applicable certificate of designations provides that holders of shares of a series of preferred stock are entitled to voting rights, each holder shall be entitled to vote ratably (relative to each

 

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other such holder) on all matters submitted to a vote of such holders. Each holder may exercise such vote either in person or by proxy.

 

Any description of our preferred stock set forth in a prospectus supplement is only a summary and is subject to the provisions of our certificate of incorporation and by-laws, in each case as amended, which are included as exhibits to the registration statement on Form S-3 of which this prospectus forms a part, the certificate of designations governing the series of preferred stock, and the applicable provisions of the laws of Delaware, our State of incorporation.

 

Rank

 

Unless otherwise specified in the applicable prospectus supplement, the shares of preferred stock of each series will rank with respect to dividend rights and rights upon liquidation, dissolution or winding up of our affairs:

 

·                                          senior to all classes or series of shares of common stock, and to all equity securities ranking junior to the series of shares of preferred stock;

 

·                                          on a parity with all equity securities issued by us the terms of which specifically provide that such equity securities rank on a parity with shares of preferred stock of the series; and

 

·                                          junior to all equity securities issued by us the terms of which specifically provide that such equity securities rank senior to shares of preferred stock of the series.

 

Dividends

 

Subject to the preferences to which holders of shares of any other series of preferred stock may be entitled and to the extent that the applicable certificate of designations so provides, the holders of shares of a series of preferred stock shall be entitled to receive ratably (relative to each other such holder) such dividends, if any, as may be declared from time to time in respect of shares of such series by our board of directors out of funds (including cash, securities and other property) legally available therefor. Subject to the prior rights of creditors and to preferences to which holders of shares of any other series of preferred stock may be entitled and to the extent that the applicable certificate of designations so provides, the holders of such shares of a series of preferred stock are entitled to receive ratably (relative to each other such holder) our assets (including cash, securities and other property) distributed upon our liquidation, dissolution or winding up.

 

DESCRIPTION OF COMMON STOCK

 

General

 

Each outstanding share of our common stock is identical in all respects and entitles its holder to the same rights and privileges, except as otherwise described below. Holders of shares of common stock do not have preemptive or other rights to subscribe for additional shares of common stock or for any of our other securities.

 

Voting Common Stock. Each holder of voting common stock is entitled to one vote per share on all matters to be voted on by our stockholders. In addition, some stockholders that are “regulated stockholders” (as defined below) may at any time convert their shares of voting common stock into an equal number of shares of non-voting common stock in order to comply with applicable regulatory requirements.

 

Non-Voting Common Stock. Holders of non-voting common stock are generally not entitled to vote that stock on any matter on which our stockholders are entitled to vote.

 

Holders of non-voting common stock can vote as a separate class on any merger or consolidation of our Company with or into another entity or entities, or any recapitalization or reorganization, in which shares of non-voting common stock would receive or be exchanged for consideration different on a per share basis from consideration received with respect to or in exchange for the shares of voting common stock or would otherwise be treated differently from shares of voting common stock in connection with such transaction, except that shares of non-voting common stock may, without such a separate class vote, receive non-voting securities which are otherwise identical to the voting securities received with respect to voting common stock so long as (1) the non-voting securities are convertible into the voting securities on the same terms as the non-voting common stock is convertible into voting common stock and (2) all other consideration is equal on a per share basis. Holders of shares of non-voting common stock can vote as a separate class on any amendment to the provisions contained in this paragraph.

 

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Holders of non-voting common stock may at any time convert any or all of their shares into an equal number of shares of voting common stock. However, a holder of non-voting common stock may not convert its shares if, as a result of that conversion, the holder would control (1) more shares of our voting common stock or other securities than the holder is permitted to own pursuant to any regulation applicable to it or (2) with respect to holders regulated by state insurance law, 5% or more of our voting capital stock. However, the shares of non-voting common stock may be converted into voting common stock if the holder believes that such converted shares will be transferred within 15 days pursuant to a “conversion event” and the holder agrees not to vote such shares of voting common stock prior to the conversion event and undertakes to convert such shares back into non-voting common stock if such shares are not transferred pursuant to a conversion event. A “conversion event” includes a public offering by us and certain changes of control of our Company.

 

We may not convert or directly or indirectly redeem, purchase or otherwise acquire any shares of voting common stock or any other class of our capital stock or take any other action affecting the voting rights of such shares if such action will increase the percentage of any class of outstanding voting securities owned or controlled by any regulated stockholder, unless we give written notice of such action to each regulated stockholder. We must defer making any such conversion, redemption, purchase or acquisition for a period of 30 days after giving notice to the regulated stockholders.

 

We may not be a party to any reorganization, merger or consolidation pursuant to which any regulated stockholder would be required to take (1) any voting securities that would cause such holder to violate any law, regulation or other governmental requirement or (2) any securities convertible into voting securities which if such conversion occurred would cause such holder to violate any law, regulation or governmental requirement. We currently have no outstanding shares of non-voting common stock.

 

Class C Common Stock. If any Class C common stock is issued, each holder of Class C common stock would be entitled to one-tenth of one vote for each share of Class C common stock held by such holder. We currently have no outstanding shares of Class C common stock.

 

The holders of shares of voting common stock and Class C common stock and, on any matter on which the holders of shares of non-voting common stock are entitled to vote, the holders of shares of non-voting common stock, all vote together as a single class; provided, however, that the holders of shares of non-voting common stock or Class C common stock are entitled to vote as a separate class on any amendment, repeal or modification of any provision of the certificate of incorporation that adversely affects the powers, preference or special rights of the holders of the non-voting common stock or Class C common stock, respectively.

 

For purposes of this section, “regulated stockholder” includes any stockholder that is subject to Regulation Y and owns our common stock or preferred stock.

 

Transfer Agent and Registrar

 

The transfer agent and registrar for our common stock is Computershare Limited.

 

Listing

 

Our common stock is listed on the New York Stock Exchange under the symbol “PAG.”

 

DESCRIPTION OF WARRANTS TO PURCHASE DEBT SECURITIES

 

The following summarizes the terms of debt warrants we may issue. We will issue the debt warrants under a debt warrant agreement that we will enter into with a bank or trust company, as debt warrant agent, that we select at the time of issue.

 

Determination of Terms

 

We may issue debt warrants evidenced by debt warrant certificates under the debt warrant agreement independently or together with any debt securities we offer by any prospectus supplement. The prospectus supplement will describe the particular terms of the debt warrants it covers. These terms may include:

 

·                                          the price at which the debt warrants will be issued;

 

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·                                          the currency or composite currency for which the debt warrants may be purchased;

 

·                                          the designation, aggregate principal amount, currency or composite currency and terms of the debt securities which may be purchased upon exercise of the debt warrants;

 

·                                          if applicable, the designation and terms of the debt securities with which the debt warrants are issued and the number of debt warrants issued with each of such debt securities;

 

·                                          if applicable, the date on and after which the debt warrants and the related debt securities will be separately transferable;

 

·                                          the principal amount of debt securities purchasable upon exercise of each debt warrant and the price at which and the currency or composite currency in which such principal amount of debt securities may be purchased upon such exercise;

 

·                                          the date on which the right to exercise the debt warrants will commence and the date on which the right will expire and, if the debt warrants are not continuously exercisable throughout such period, the specific date or dates on which they will be exercisable;

 

·                                          whether the debt warrant certificates representing the debt warrants will be in registered form or bearer form, or both;

 

·                                          any applicable Federal income tax consequences;

 

·                                          the identity of the debt warrant agent for the debt warrants; and

 

·                                          any other terms of the debt warrants which conflict with the debt warrant agreement.

 

You may exchange debt warrant certificates for new debt warrant certificates of different denominations and may present debt warrant certificates for registration of transfer at the corporate trust office of the debt warrant agent, which will be listed in the prospectus supplement. Debt warrant holders, as such, do not have any of the rights of holders of debt securities, except to the extent that the consent of debt warrant holders may be required for certain modifications of the terms of an indenture or form of the debt security, as the case may be, and the series of debt securities issuable upon exercise of the debt warrants. In addition, debt warrant holders are not entitled to payments of principal of and interest, if any, on the debt securities.

 

Exercise of Debt Warrants

 

You may exercise debt warrants by surrendering the debt warrant certificate at the corporate trust office of the debt warrant agent, with payment in full of the exercise price. Upon the exercise of debt warrants, the debt warrant agent will, as soon as practicable, deliver the debt securities in authorized denominations in accordance with your instructions. If less than all the debt warrants evidenced by the debt warrant certificate are exercised, the agent will issue a new debt warrant certificate for the remaining amount of debt warrants.

 

DESCRIPTION OF WARRANTS TO PURCHASE COMMON OR PREFERRED STOCK

 

The following summarizes the terms of common stock warrants and preferred stock warrants we may issue. This description is subject to the detailed provisions of a stock warrant agreement that we will enter into with a stock warrant agent we select at the time of issue.

 

General Terms

 

We may issue stock warrants evidenced by stock warrant certificates under the stock warrant agreement independently or together with any securities we offer by any prospectus supplement. If we offer stock warrants, the prospectus supplement will describe the particular terms of the stock warrants it covers. These terms may include:

 

·                                          the offering price, if any;

 

·                                          the number of shares of common or preferred stock purchasable upon exercise of one stock warrant and the initial price at which the shares may be purchased upon exercise;

 

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·                                          if applicable, the designation and terms of the preferred stock purchased upon exercise of the preferred stock warrants;

 

·                                          the dates on which the right to exercise the stock warrants begins and expires;

 

·                                          certain United States federal income tax consequences;

 

·                                          call provisions, if any;

 

·                                          the currencies in which the offering price and exercise price are payable; and

 

·                                          if applicable, the anti-dilution provisions of the stock warrants.

 

The shares of common stock or preferred stock we issue upon exercise of the stock warrants will, when issued in accordance with the stock warrant agreement, be validly issued, fully paid and non-assessable.

 

Exercise of Stock Warrants

 

You may exercise stock warrants by surrendering to the stock warrant agent the stock warrant certificate, which indicates your election to exercise all or a portion of the stock warrants evidenced by the certificate. Surrendered stock warrant certificates must be accompanied by payment of the exercise price in the form of cash or a check. The stock warrant agent will deliver certificates evidencing duly exercised stock warrants to the transfer agent. Upon receipt of the certificates and the exercise price, the transfer agent will deliver a certificate representing the number of shares of common stock or preferred stock purchased. If you exercise fewer than all the stock warrants evidenced by any certificate, the stock warrant agent will deliver a new stock warrant certificate representing the unexercised stock warrants.

 

No Rights As Shareholders

 

Holders of stock warrants, as such, are not entitled to vote, to consent, to receive dividends or to receive notice as holders of common stock or preferred stock with respect to any meeting of such holders, or to exercise any rights whatsoever as holders of our common stock or preferred stock.

 

PLAN OF DISTRIBUTION

 

We and/or selling securityholders may sell the offered securities to or through one or more underwriters for public offering and sale by them, may sell the offered securities to investors directly or through agents, which agents may be affiliated with us, or otherwise through a combination of any of such methods of sale. Direct sales to investors may be accomplished through subscription offerings or through subscription rights distributed to our stockholders. In connection with subscription offerings or the distribution of subscription rights to stockholders, if all of the underlying offered securities are not subscribed for, we may sell such unsubscribed offered securities to third parties directly or through agents and, in addition, whether or not all of the underlying offered securities are subscribed for, we may concurrently offer additional offered securities to third parties directly or through agents, which agents may be affiliated with us. Any underwriter or agent involved in the offer and sale of the offered securities will be named in the applicable prospectus supplement.

 

Any selling securityholder will act independently of us in making decisions with respect to the timing, manner and size of each sale of securities covered by this prospectus and the applicable prospectus supplement.

 

The distribution of the offered securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, or at prices related to the prevailing market prices at the time of sale or at negotiated prices, any of which may represent a discount from the prevailing market price. We and/or selling securityholders also may, from time to time, authorize underwriters acting as our agents to offer and sell the offered securities upon the terms and conditions set forth in the applicable prospectus supplement. In connection with the sale of offered securities, underwriters may be deemed to have received compensation in the form of underwriting discounts or commissions and may also receive commissions from purchasers of offered securities for whom they may act as agent. Underwriters may sell offered securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent.

 

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Our securities, including our common stock, may also be sold in one or more of the following transactions: (i) block transactions (which may involve crosses) in which a broker-dealer may sell all or a portion of such shares as agent, but may position and resell all or a portion of the block as principal to facilitate the transaction; (ii) purchases by any such broker-dealer as principal, and resale by such broker-dealer for its own account pursuant to a prospectus supplement; (iii) a special offering, an exchange distribution or a secondary distribution in accordance with applicable New York Stock Exchange or other stock exchange, quotation system or over-the-counter market rules; (iv) ordinary brokerage transactions and transactions in which any such broker-dealer solicits purchasers; (v) sales “at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise, for such shares; and (vi) sales in other ways not involving market makers or established trading markets, including direct sales to purchasers.

 

Any underwriting compensation paid to underwriters or agents in connection with the offering of offered securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be set forth in the applicable prospectus supplement. Underwriters, dealers and agents participating in the distribution of the offered securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of the offered securities may be deemed to be underwriting discounts and commissions, under the Securities Act of 1933, as amended (the “Securities Act”). Underwriters, dealers and agents may be entitled, under agreements entered into with us and/or selling securityholders, to indemnification against and contribution toward civil liabilities, including liabilities under the Securities Act. Any such indemnification agreements will be described in the applicable prospectus supplement.

 

If five percent or more of the net proceeds of any offering of securities made under this prospectus will be received by members of the Financial Industry Regulatory Authority, which we refer to in this prospectus as “FINRA,” participating in the offering or by affiliates or associated persons of such FINRA members, the offering will be conducted in accordance with FINRA Conduct Rule 5121.

 

The maximum aggregate commission or discount to be received by any member of FINRA or independent broker dealer will not be greater than 8% of the gross proceeds of the sale of securities offered pursuant to this prospectus and any applicable prospectus supplement.

 

To comply with the securities laws of some states, if applicable, the securities may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the securities may not be sold unless they have been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.

 

Some of the underwriters and their affiliates may be customers of, engage in transactions with and perform services for us and our subsidiaries in the ordinary course of business.

 

SELLING SECURITYHOLDERS

 

Selling securityholders are persons or entities that, directly or indirectly, have acquired or will from time to time acquire from us, our securities in various private transactions. Such selling securityholders may be parties to registration rights agreements with us, or we otherwise may have agreed or will agree to register their securities for resale. The initial purchasers of our securities, as well as their transferees, pledgees, donees or successors, all of whom we refer to as “selling securityholders,” may from time to time offer and sell the securities pursuant to this prospectus and any applicable prospectus supplement.

 

The applicable prospectus supplement will set forth the name of each selling securityholder and the number of and type of securities beneficially owned by such selling securityholder that are covered by such prospectus supplement. The applicable prospectus supplement also will disclose whether any of the selling securityholders have held any position or office with, have been employed by or otherwise have had a material relationship with us during the three years prior to the date of the prospectus supplement.

 

LEGAL MATTERS

 

Unless otherwise specified in a prospectus supplement, certain legal matters in connection with the securities offered pursuant to this prospectus will be passed upon by Shane M. Spradlin, Esq., our general counsel. Mr. Spradlin owns shares of our common stock, and holds restricted stock awards and may receive additional awards in the future. Any underwriters will be represented by their own legal counsel.

 

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EXPERTS

 

The financial statements of Penske Automotive Group, Inc. and its consolidated subsidiaries (the “Company”), except for the consolidated statements of income, comprehensive income, equity and cash flows of Sytner Group Limited, and the related financial statement schedule for the year ended December 31, 2016, as of December 31, 2018 and 2017 and for each of the three years in the period ended December 31, 2018, and the related financial statement schedule, incorporated by reference in this prospectus from the Company’s Annual Report on Form 10-K for the year ended December 31, 2018, and the effectiveness of the Company’s internal control over financial reporting as of December 31, 2018,  have been audited by Deloitte & Touche LLP as stated in their report which is incorporated herein by reference.

 

The consolidated statements of income, comprehensive income, equity and cash flows and the related financial statement schedule of Sytner Group Limited (a consolidated subsidiary of the Company) for the year ended December 31, 2016 (which are not included or incorporated by reference in this prospectus) have been audited by KPMG LLP as stated in their report which is incorporated by reference in this prospectus from the Company’s Annual Report on Form 10-K for the year ended December 31, 2018.

 

Such financial statements of Penske Automotive Group, Inc. and its consolidated subsidiaries, as of December 31, 2018 and 2017 and for each of the three years in the period ended December 31, 2018 and the related financial statement schedule of the Company are incorporated by reference herein in reliance upon the respective reports of such firms given upon their authority as experts in accounting and auditing. All of the foregoing firms are independent registered public accounting firms.

 

WHERE YOU CAN FIND MORE INFORMATION

 

We have filed a registration statement on Form S-3 with the SEC under the Securities Act to register the securities offered by means of this prospectus. This prospectus, which is a part of the registration statement, does not contain all of the information identified in the registration statement. For further information about us and the securities offered by means of this prospectus, we refer you to the registration statement and the exhibits filed as a part of the registration statement. Statements contained in this prospectus as to the contents of any contract or other document filed as an exhibit to the registration statement are not necessarily complete. If a contract or document has been filed as an exhibit to the registration statement, we refer you to the copy of the contract or document that has been filed.

 

We are subject to the information and periodic reporting requirements of the Exchange Act. In accordance with those requirements, we file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The documents that we file with the SEC, including the registration statement, are available to investors on this web site. You can log onto the SEC’s web site at http://www.sec.gov. Certain information is also available on our corporate website at http://www.penskeautomotive.com/. The information contained on, or accessible through, our corporate web site or any other web site that we may maintain is not part of this prospectus or the registration statement of which this prospectus forms a part.

 

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PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 14.  Other Expenses of Issuance and Distribution

 

The following table sets forth the estimated expenses to be borne by us in connection with the issuance and distribution of the securities registered hereby:

 

SEC registration fee

 

$

*

 

Printing expenses

 

**

 

Legal fees and expenses

 

**

 

Accounting fees and expenses

 

**

 

Trustee fees and expenses

 

**

 

Miscellaneous

 

**

 

Total

 

$

**

 

 


*          The registrant is registering an indeterminate amount of securities under this registration statement and, in accordance with Rules 456(b) and 457(r), the registrant is deferring payment of any additional registration fee until the time that the securities are sold under this registration statement pursuant to a prospectus supplement.

**   Not presently known.

 

Item 15.  Indemnification of Directors and Officers

 

The restated certificate of incorporation of Penske Automotive Group, Inc. (“Penske Automotive Group”) provides that a director of Penske Automotive Group will not be liable to Penske Automotive Group or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that an exemption from liability or limitation of liability is not permitted under the Delaware General Corporation law (“DGCL”). Based on the DGCL as presently in effect, a director of Penske Automotive Group will not be personally liable to Penske Automotive Group or its stockholders for monetary damages for breach of fiduciary duty as a director, except: (1) for any breach of the director’s duty of loyalty to Penske Automotive Group or its stockholders; (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) under Section 174 of the DGCL, which concerns unlawful payments of dividends, stock purchases or redemptions; or (4) for any transactions from which the director derived an improper personal benefit.

 

While these provisions give directors protection from awards for monetary damages for breaches of their duty of care, they do not eliminate the duty. Accordingly, Penske Automotive Group’s certificate of incorporation will have no effect on the availability of equitable remedies such as injunction or rescission based on a director’s breach of his or her duty of care.

 

Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s 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 payments of unlawful dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transactions from which the director derived an improper personal benefit.

 

The Restated Certificate of Incorporation and the By-laws of Penske Automotive Group provide that Penske Automotive Group will indemnify its directors and officers to the fullest extent permitted by law and that no director shall be liable for monetary damages to Penske Automotive Group or its stockholders for any breach of fiduciary duty, except to the extent provided by applicable law. Penske Automotive Group maintains standard policies of directors’ and officers’ liability insurance.

 

Arizona Registrants:

 

The registrants organized as corporations under Arizona law are subject to the provisions of the Arizona Corporations and Associations Act (“ACAA”). Section 10-851 of the ACAA provides that, subject to certain limitations, a corporation may indemnify a director against liability incurred in the proceeding if all of certain specified conditions exist, or as provided in the corporation’s articles of incorporation. A corporation may not indemnify a director who was adjudged liable on the basis that financial benefit was improperly received by the director. Indemnification is limited to reasonable expenses incurred in connection with the proceeding.

 

Section 10-851 of the ACAA permits an Arizona corporation to eliminate or limit in its articles of incorporation the liability of a director to the corporation or its shareholders for money damages for any action taken or any failure to take any action as a director, except under certain specified circumstances and permits an Arizona corporation to include in its articles of incorporation a provision

 

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permitting or making obligatory indemnification of a director for liability to any person for any action taken, or any failure to take any action, as a director, except for certain exceptions.

 

The articles of incorporation of SA Automotive, Ltd., Scottsdale Management Group, Ltd., and Sigma Motors Inc. provide that no director of the corporation shall be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, subject to certain limitations. In addition, these articles of incorporation provide that each corporation shall indemnify any and all of its existing and former directors, officers, employees, and agents for expenses incurred in any legal action brought or threatened against them for any action or omission alleged to have been committed while acting within the scope of their position at the corporation, subject to certain limitations.

 

The articles of incorporation of Sigma Motors Inc. provide that the corporation shall indemnify any person who incurs expenses or liabilities by reason of the fact he or she is or was an officer, director, employee or agent of the corporation, and is mandatory in all circumstances in which indemnification is permitted by law. The articles of incorporation further provide that, to the fullest extent permitted by Arizona law, a director of the corporation shall not be liable to the corporation or its shareholders for monetary damages for any action taken or any failure to take any action as a director.

 

Scottsdale Ferrari, LLC is subject to the Arizona Limited Liability Company Act (“ALLCA”). Section 29-610(A)(13) of the ALLCA permits a limited liability company to indemnify a member, manager, employee, officer, agent or any other person.

 

Arkansas Registrants:

 

The registrants organized as corporations under Arkansas law are subject to the provisions of the Arkansas Business Corporation Act (“ABCA”). Under Section 4-27-850 of the ABCA, a corporation has power to indemnify a director, officer, employee, or agent of the corporation against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred 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. If the director, officer, employee, or agent is found to be liable to the corporation, indemnification is not permitted unless the court in which such action or suit was brought determines that the person is fairly and reasonably entitled to indemnity for such expenses which the court deems proper.

 

Section 4-27-202(b)(3) of the ABCA permits an Arkansas corporation to eliminate or limit in its articles of incorporation the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, subject to certain limitations.

 

The articles of incorporation of Landers Buick-Pontiac, Inc. provide that to the fullest extent permitted by the ABCA, a director of the corporation shall not be liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. The articles of incorporation further provide that the corporation may indemnify any person who was, or is, a party, or is threatened to be made a party, to a proceeding to the fullest extent permitted by the ABCA.

 

The articles of incorporation of Landers Ford North, Inc. provide that to the fullest extent permitted by law, a director of the corporation shall not be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director except under certain circumstances. The articles of incorporation and the bylaws of both registrants provide that the corporation shall indemnify, to the fullest extent permitted by Arkansas law, any person who was or is a party or is threatened to be made a party to a proceeding by reason of the fact that he is or was a director, officer, employee or agent of the corporation, under certain circumstances and subject to certain limitations, and these rights are not exclusive of any other indemnification rights granted by law or in other organizational documents.

 

California Registrants: