As filed with the Securities and Exchange Commission on August 12, 2005.
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CARMAX, INC.
(Exact name of registrant as specified in its charter)
Virginia 54-1821055
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4900 Cox Road
Glen Allen, Virginia 23060
(Address of Principal Executive Offices) (Zip Code)
-------------------
CarMax, Inc. Amended and Restated 2002 Stock Incentive Plan
CarMax, Inc. Amended and Restated 2002 Non-Employee Directors
Stock Incentive Plan
(Full title of the plan)
Austin Ligon
President and Chief Executive Officer
CarMax, Inc.
4900 Cox Road
Glen Allen, Virginia 23060
(Name and address of agent for service)
(804) 747-0422
(Telephone number, including area code, of agent for service)
-------------------
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
To be registered registered (1) offering price per aggregate offering registration
share (2) price (2) fee
---------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.50 per share for:
---------------------------------------------------------------------------------------------------------------------
CarMax, Inc. Amended and 150,000 $29.32 $ 4,398,000 $ 518
Restated 2002 Non-Employees
Director Stock Incentive Plan
---------------------------------------------------------------------------------------------------------------------
CarMax, Inc. Amended and 6,750,000 $29.32 $197,910,000 $23,294
Restated 2002 Employee Stock
Incentive Plan
---------------------------------------------------------------------------------------------------------------------
TOTAL 6,900,000 $29.32 $202,308,000 $23,812
=====
---------------------------------------------------------------------------------------------------------------------
Rights to Purchase Cumulative
Participating Preferred Stock, (3) (3) (3) (3)
Series A
---------------------------------------------------------------------------------------------------------------------
(1) The amount of Common Stock registered hereunder shall be deemed to
include any additional shares issuable as a result of any stock split,
stock dividend or other change in the capitalization of the Registrant.
(2) Estimated solely for the purposes of calculating the registration fee
as contemplated by Rules 457(c) and 457(h)(1) of the Securities Act of
1933, as amended, and based on the average of the high ($29.44) and
low ($29.20) per share sales prices of CarMax, Inc. Common Stock
reported on the New York Stock Exchange on August 9, 2005.
(3) The Rights to Purchase Cumulative Participating Preferred Stock, Series
A, will be attached to and will trade with the shares of Common Stock
of the Registrant. The value attributable to such Rights, if any, will
be reflected in the market price of the shares of Common Stock. No
additional registration fee is required.
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Not required to be filed.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by CarMax, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated herein by reference and made a part hereof to the extent
that such documents are considered filed with the Commission:
(1) the Registrant's Annual Report on Form 10-K for the fiscal
year ended February 28, 2005 (the "Form 10-K");
(2) the portions of the Registrant's definitive Proxy Statement
for the Annual Meeting of Shareholders held on June 21, 2005
that have been incorporated by reference into the Form 10-K;
(3) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended May 31, 2005;
(4) the Registrant's Current Reports on Form 8-K filed on
April 21, 2005, May 20, 2005 (with respect to the termination
of its credit agreement), May 20, 2005 (with respect to sales
and earnings expectations), June 20, 2005 and June 22, 2005;
and
(5) the description of the Registrant's common stock contained in
the Registration Statement on Form 8-A filed on
August 7, 2002, under Section 12(b) of the Exchange Act.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
II-2
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents, to the extent that such documents are considered filed
with the Commission. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such earlier statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Williams Mullen, counsel to the Registrant, has rendered its opinion
that the Common Stock, when issued pursuant to the terms and conditions of the
CarMax, Inc. 2002 Amended and Restated Stock Incentive Plan and/or the CarMax,
Inc. 2002 Amended and Restated Non-Employee Directors Stock Incentive Plan, as
the case may be, will be validly issued, fully paid and non-assessable.
Attorneys employed by Williams Mullen beneficially owned an aggregate of
approximately 4,106 shares of the Registrant's common stock as of
August 10, 2005.
Item 6. Indemnification of Directors and Officers
Article 10 of Chapter 9 of Title 13.1 of the Code of Virginia, as
amended (the "Code"), permits a Virginia corporation to indemnify any director
or officer for reasonable expenses incurred in any legal proceeding in advance
of final disposition of the proceeding, if the director or officer furnishes the
corporation a written statement of his or her good faith belief that he or she
has met the standard of conduct prescribed by the Code and furnishes the
corporation a written undertaking to repay any advance if it is ultimately
determined that he or she did not meet the standard of conduct, and a
determination is made by the board of directors that such standard has been met.
In a proceeding by or in the right of the corporation, no indemnification shall
be made in respect of any matter as to which an officer or director is adjudged
to be liable to the corporation, unless the court in which the proceeding took
place determines that, despite such liability, such person is reasonably
entitled to indemnification in view of all of the relevant circumstances. In any
other proceeding, no indemnification shall be made if the director or officer is
adjudged liable to the corporation on the basis that he or she improperly
received a personal benefit. Corporations are given the power to make any other
or further indemnity, including advance of expenses, to any director or officer
that may be authorized by the articles of incorporation or any bylaw made by the
shareholders, or any resolution adopted, before or after the event, by the
shareholders, except an indemnity against willful misconduct or a knowing
violation of the criminal law. Unless limited by its articles of incorporation,
indemnification of a director or officer is mandatory when he or she entirely
prevails in the defense of any proceeding to which he or she is a party because
he or she is or was a director or officer.
II-3
The Articles of Incorporation, as amended, of the Registrant contain
provisions indemnifying the directors and officers of the Registrant to the full
extent permitted by Virginia law. In addition, the Articles of Incorporation, as
amended, of the Registrant eliminate the personal liability of the Registrant's
directors and officers to the Registrant or its shareholders for monetary
damages to the full extent permitted by Virginia law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed on behalf of the Registrant as part of
this Registration Statement:
4.1 CarMax, Inc. Amended and Restated Articles of Incorporation,
effective June 6, 2002, filed as Exhibit 3.1 to the
Registrant's Current Report on Form 8-K, filed October 3, 2002
(Filed No. 1-31420), is incorporated by this reference.
4.2 CarMax, Inc. Articles of Amendment to the Amended and Restated
Articles of Incorporation, effective June 6, 2002, filed as
Exhibit 3.2 to the Registrant's Current Report on Form 8-K,
filed October 3, 2002 (File No. 1-31420), is incorporated by
this reference.
4.3 CarMax, Inc. Bylaws, as amended and restated January 18, 2005,
filed as Exhibit 3.1 to the Registrant's Current Report on
Form 8-K, filed January 21, 2005 (File No. 1-31420) is
incorporated by this reference.
4.4 Rights Agreement dated as of May 21, 2002, between CarMax,Inc.
and Wells Fargo Bank Minnesota, N.A., as Rights Agent, filed
as Exhibit 4.1 to the Registrant's Registration Statement on
Form S-4/A filed June 6, 2002 (File No. 333-85240), is
incorporated by this reference.
4.5 CarMax Inc. Amended and Restated 2002 Stock Incentive Plan, as
amended and restated effective June 21, 2005, filed as Exhibit
10.1 to the Registrant's Current Report on Form 8-K, filed
June 21, 2005 (File No. 1-31420), is incorporated by this
reference.
4.6 CarMax Inc. Amended and Restated 2002 Non-Employee Directors
Stock Incentive Plan, as amended and restated effective
June 21, 2005, filed as Exhibit 10.2 to the Registrant's
Current Report on Form 8-K, filed June 21, 2005
(File No. 1-31420), is incorporated by this reference.
5.1 Opinion of Counsel.*
II-4
23.1 Consent of Counsel (included in Exhibit 5.1).*
23.2 Consent of Independent Registered Public Accounting Firm.*
24.1 Powers of Attorney.*
------------
*Filed herewith
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not
exceed that which was registered) and any
deviation from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospectus filed
with the Commission pursuant to Rule
424(b)if, in the aggregate, the changes in
volume and price represent no more than 20
percent change in the maximum aggregate
offering price set forth in the
"Calculation of Registration Fee" table in
the effective registration statement;
and (iii) To include any material
information with respect to the plan of
distribution not previously disclosed in
the registration statement or any material
change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii)
do not apply if the registration statement is on Form
S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in
the registration statement.
II-5
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Henrico County, Commonwealth of Virginia, on this 12th day
of August, 2005.
CARMAX, INC.
By: /s/ Austin Ligon
----------------------------
Austin Ligon
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Austin Ligon President and Chief Executive August 12, 2005
---------------------- Officer and Director
Austin Ligon (Principal Executive Officer)
/s/ Keith D. Browning Executive Vice President, Chief August 12, 2005
---------------------- Financial Officer and Director
Keith D. Browning (Principal Financial Officer and
Principal Accounting Officer)
* Chairman of the Board of August 12, 2005
---------------------- Directors
Richard L. Sharp
* Director August 12, 2005
----------------------
James F. Clingman, Jr.
Signature Title Date
--------- ----- ----
* Director August 12, 2005
----------------------
Jeffrey E. Garten
* Director August 12, 2005
----------------------
W. Robert Grafton
* Director August 12, 2005
----------------------
William S. Kellogg
* Director August 12, 2005
----------------------
Hugh G. Robinson
* Director August 12, 2005
----------------------
Thomas G. Stemberg
* Director August 12, 2005
----------------------
Beth A. Stewart
* Director August 12, 2005
----------------------
William R. Tiefel
* Keith D. Browning, by signing his name hereto, signs this document on
behalf of each of the persons indicated by an asterisk above pursuant to powers
of attorney duly executed by such persons and filed with the Securities and
Exchange Commission as part of this Registration Statement.
Date: August 12, 2005 /s/ Keith D. Browning
-------------------------------------
Keith D. Browning
Attorney-in-Fact
EXHIBIT INDEX
-------------
TO
FORM S-8 REGISTRATION STATEMENT
----------------------
Exhibit
Number Description of Exhibit
------ ----------------------
4.1 CarMax, Inc. Amended and Restated Articles of Incorporation,
effective June 6, 2002, filed as Exhibit 3.1 to the
Registrant's Current Report on Form 8-K, filed October 3, 2002
(Filed No. 1-31420), is incorporated by this reference.
4.2 CarMax, Inc. Articles of Amendment to the Amended and Restated
Articles of Incorporation, effective June 6, 2002, filed as
Exhibit 3.2 to the Registrant's Current Report on Form 8-K,
filed October 3, 2002 (File No. 1-31420), is incorporated by
this reference.
4.3 CarMax, Inc. Bylaws, as amended and restated January 18, 2005,
filed as Exhibit 3.1 to the Registrant's Current Report on
Form 8-K, filed January 21, 2005 (File No. 1-31420) is
incorporated by this reference.
4.4 Rights Agreement dated as of May 21, 2002, between
CarMax, Inc. and Wells Fargo Bank Minnesota, N.A., as Rights
Agent, filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form S-4/A filed June 6, 2002
(File No. 333-85240), is incorporated by this reference.
4.5 CarMax Inc. Amended and Restated 2002 Stock Incentive Plan, as
amended and restated effective June 21, 2005, filed as Exhibit
10.1 to the Registrant's Current Report on Form 8-K, filed
June 21, 2005 (File No. 1-31420), is incorporated by this
reference.
4.6 CarMax Inc. Amended and Restated 2002 Non-Employee Directors
Stock Incentive Plan, as amended and restated effective June
21, 2005, filed as Exhibit 10.2 to the Registrant's Current
Report on Form 8-K, filed June 21, 2005 (File No. 1-31420), is
incorporated by this reference.
5.1 Opinion of Counsel.*
23.1 Consent of Counsel (included in Exhibit 5.1).*
23.2 Consent of Independent Registered Public Accounting Firm.*
24.1 Powers of Attorney.*
------------
*Filed herewith